When President Trump appoints a replacement to Chief of Staff John Kelly, whose resignation (or firing) he announced on December 8th, he will once again have set a record. This time it is the record for most chiefs of staff within the first 24 months of an administration. Since President Trump’s inauguration, the most influential staff position within the presidency has been characterized by instability, public criticism, and huge fluctuations in influence.

The position of chief of staff, created by President Truman, but at the time vaguely referred to as “the assistant to the president,” was first occupied by John R. Steelman, who stayed a record-setting six years on the job. Since its inception, no president has had three different chiefs of staff over the course of 24 months in office. Among those with some turnover during the second year were President Ford, who was already serving a truncated term due to Nixon’s resignation. In this case, Donald Rumsfeld served 14 months on the job before being promoted to his first stint as Secretary of Defense. He turned the reins over to a young deputy chief of staff, Richard Cheney. After a rocky first year, President Clinton replaced his chief of staff, Mack McLarty, with the OMB Director, Leon Panetta. (McLarty served 16 months on the job.) Most recently, President Obama replaced Rahm Emmanuel (who decided to run for Chicago mayor) after 21 months on the job (Pete Rouse initially served as “acting” chief of staff before Bill Daley took over). In stark contrast, Reince Priebus lasted a little over six months, and assuming John Kelly leaves at the end of December as Trump announced, his tenure will have lasted a tumultuous 17 months. This rocky period was punctuated by threats to leave and claims that the president and others were set to fire him. Such conditions no doubt tested the grit of the retired Marine Corps general.

Aside from those three cases, the remaining seven presidents who named individuals to that post did not have any turnover within the first two years of their administrations. (Presidents Kennedy and Johnson did not have that position within their White House staff structure.) Interestingly, the position during both Bush White Houses was characterized by remarkable stability throughout the first term, posing a sharp contrast to the chief of staff turnover in the Trump White House, where high staff turnover generally has been an historic anomaly.

Though a permanent successor to Kelly has not yet been named, the appointment of a third chief of staff will by no means ensure future stability. In fact, the months ahead will likely complicate an already difficult job. In addition to the vast array of responsibilities and the constant need to temper the president’s instincts, the new chief of staff and the rest of the White House will also be contending with the growing pressure of the Special Counsel’s investigation, the Democrats’ majority in the House of Representatives (likely resulting in multiple investigations and subpoenas), and a preoccupation with the reelection campaign—a condition that permeates the modern presidency. The intensive efforts the reelection campaign will require will have a profound impact on day-to-day operations and add an additional realm of responsibility and oversight. The new chief of staff will become the linchpin between the White House and the reelection campaign—necessitating management, critical decision making, and perhaps an added level of stress as the president tries to navigate this new terrain.

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By Kathryn Dunn Tenpas, Ph.D
When President Trump appoints a replacement to Chief of Staff John Kelly, whose resignation (or firing) he announced on December 8th, he will once again have set a record. This time it is the record for most chiefs of staff within the first 24 months of an administration. Since President Trump’s inauguration, the most influential staff position within the presidency has been characterized by instability, public criticism, and huge fluctuations in influence.
The position of chief of staff, created by President Truman, but at the time vaguely referred to as “the assistant to the president,” was first occupied by John R. Steelman, who stayed a record-setting six years on the job. Since its inception, no president has had three different chiefs of staff over the course of 24 months in office. Among those with some turnover during the second year were President Ford, who was already serving a truncated term due to Nixon’s resignation. In this case, Donald Rumsfeld served 14 months on the job before being promoted to his first stint as Secretary of Defense. He turned the reins over to a young deputy chief of staff, Richard Cheney. After a rocky first year, President Clinton replaced his chief of staff, Mack McLarty, with the OMB Director, Leon Panetta. (McLarty served 16 months on the job.) Most recently, President Obama replaced Rahm Emmanuel (who decided to run for Chicago mayor) after 21 months on the job (Pete Rouse initially served as “acting” chief of staff before Bill Daley took over). In stark contrast, Reince Priebus lasted a little over six months, and assuming John Kelly leaves at the end of December as Trump announced, his tenure will have lasted a tumultuous 17 months. This rocky period was punctuated by threats to leave and claims that the president and others were set to fire him. Such conditions no doubt tested the grit of the retired Marine Corps general.
Aside from those three cases, the remaining seven presidents who named individuals to that post did not have any turnover within the first two years of their administrations. (Presidents Kennedy and Johnson did not have that position within their White House staff structure.) Interestingly, the position during both Bush White Houses was characterized by remarkable stability throughout the first term, posing a sharp contrast to the chief of staff turnover in the Trump White House, where high staff turnover generally has been an historic anomaly.
Though a permanent successor to Kelly has not yet been named, the appointment of a third chief of staff will by no means ensure future stability. In fact, the months ahead will likely complicate an already difficult job. In addition to the vast array of responsibilities and the constant need to temper the president’s instincts, the new chief of staff and the rest of the White House will also be contending with the growing pressure of the Special Counsel’s investigation, the Democrats’ majority in the House of Representatives (likely resulting in multiple investigations and subpoenas), and a preoccupation with the reelection campaign—a condition that permeates the modern presidency. The intensive efforts the reelection campaign will require will have a profound impact on day-to-day operations and add an additional realm of responsibility and oversight. The new chief of staff will become the linchpin between the White House and the reelection campaign—necessitating management, critical decision making, and perhaps an added level of stress as the president tries to navigate this new terrain. By Kathryn Dunn Tenpas, Ph.D
When President Trump appoints a replacement to Chief of Staff John Kelly, whose resignation (or firing) he announced on December 8th, he will once again have set a record. This time it is the record for most chiefs of ... https://www.brookings.edu/blog/fixgov/2018/12/06/trump-impact-on-appellate-courts/Appellate Court vacancies may be scarce in coming years, limiting Trump’s impacthttp://webfeeds.brookings.edu/~/584015648/0/brookingsrss/topics/executivebranch/
Thu, 06 Dec 2018 13:09:46 +0000https://www.brookings.edu/?p=551501

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By Russell Wheeler

The Trump White House, with Senate Republicans and the Federalist Society, has been appointing courts of appeals judges with bulldozer efficiency. The 29 circuit appointments to date is the highest number of any president at this point in his tenure, facilitated partly by a large number of vacancies. How many more appointments will occur in the next two years depends on how many more vacancies occur, which is uncertain at best.

Despite the 29 circuit appointments, Trump and company have only modestly changed the party-of-appointing-president balance on the court of appeals. Of Trump’s 29 circuit appointments, 19 replaced Republican appointees. Of the 16 current and announced vacancies, 9 were created by Republican appointees.

To be sure, Table 1 shows that when all current vacancies are filled (and were no more to occur), Republican appointees would comprise 54 percent of all active circuit judges, up from 44 percent on Inauguration Day. But only one court of appeals, that of the Third Circuit, will have changed from a Democratic to a Republican-appointee majority, although there will be noticeably more Republican appointees on the Second, Ninth, and Eleventh circuits’ courts. Mainly, though, the Trump circuit appointments have strengthened Republican-appointee majorities on four courts that already had such majorities—those of the Fifth, Sixth, Seventh, and Eighth circuits.

Table 1: Appellate Court Appointees on Trump’s Inauguration Day and After Filling All Current Vacancies

1/20/2017

When all current and announced vacancies filled

Circuit

Judgeships

R Appts

D Appts

Vacant

R Appts

D Appts

Vacant

1st

6

2

4

0

2

4

0

2nd

13

4

7

2

6

7

0

3rd

14

5

7

2

8

6

0

4th

15

5

10

0

6

9

0

5th

17

9

5

3

12

5

0

6th

16

10

5

1

11

5

0

7th

11

6

3

2

9

2

0

8th

11

8

1

2

10

1

0

9th

29

7

18

4

13

16

0

10th

12

5

7

0

5

7

0

11th

12

3

8

1

6

6

0

DC

11

4

7

0

4

7

0

FED

12

4

8

0

4

8

0

% of:

179

72

99

17

96

83

0

J’ships

40%

50%

10%

54%

46%

0%

Active Js

44%

56%

54%

46%

How many more circuit judges can Trump appoint and how much more can he change the face of the appellate courts in the remaining two years of his first term?

Because the Senate will likely confirm almost anyone he nominates, the answer depends on how many vacancies occur, in particular vacancies created by Democratic appointees, an obvious fact noted by many observers.

A judgeship becomes vacant when the judge occupying it leaves active (full-time) status by taking senior status, retiring, resigning, dying, or getting appointed to another court, or getting impeached and convicted. (Congress creates vacancies when it creates additional judgeships to fill, but Congress has not created any circuit judgeships since 1990.)

Senior status is by far the most common form of vacancy creation. Judges become eligible to take this form of statutory semi-retirement, or to retire entirely (keeping their salary in either case), when they turn 65 and their years of service in life-tenured judgeships sum to 80 (the so-called “rule of 80”). (A 67 year-old judge, for example, who had been appointed at age 54, would be eligible: 67+ 13 = 80.) Based on data compiled from the Federal Judicial Center’s Federal Judge Biographical Data Base, of the 334 circuit judges who have created vacancies since 1978, 87 percent of them did so by going senior, retiring, or resigning. Senior status alone accounts for three fourths of all vacancies created.

In that period, on average about seven judges per year took senior status, although the number has ranged from one to 12 per year. On average, retirements occurred less than once a year and resignations even less often.

Trump inherited 17 circuit vacancies on Inauguration Day and since then has benefitted from an unusually high number of additional vacancies, most created by Republican appointees, at least some of whom didn’t want Obama naming their successors. Since Inauguration Day, 21 circuit judges (15 of them Republican appointees) have taken senior status, and four Republican appointees retired from active service. Trump created two more circuit vacancies with his Supreme Court appointments. (A death accounted for the 28th vacancy since Inauguration Day)

If that accelerated pace of vacancy creation keeps up, Trump will continue to appoint a large number of circuit judges. Although hardly dispositive, history can inform speculation of whether that pace will keep up and whether Trump will be able to replace Democratic appointees. Recent history does not suggest a surge in vacancies.

There are plenty of potential future vacancies. Of the 167 circuit judges in active status in early December, 65 (by my count) are now eligible to leave active status under the rule of 80, and six more will be eligible by July 1, 2020. Of those 71, 40 are Democratic appointees. If all eligible Democratic appointees left active status and Trump filled all those vacancies, there would be a 136 Republican-appointee stronghold in the courts of appeals. To put this figure into perspective, after 12 years of Republican judicial appointments (1981-1993), President Clinton inherited only a 119-Republican-appointee majority.

But being eligible to take senior status or retire and actually doing it are two different things. Indeed, of the 65 now eligible, 23 have been eligible for 20 years or more. It’s unlikely that many of them and many others already eligible will voluntarily depart active status in the next 18 months.

Judges take senior status for a variety of reasons, including health and retaining a judicial salary with a reduced (or even no) workload. Judges retire under the rule of 80 because they tire of the work and can keep their judicial salary and, if so disposed, earn additional money from other employment, including, for example, as well-paid arbitrators or mediators.

On the other hand, judges eschew senior status or retirement because they enjoy full-time judging or don’t want the current president to replace them, or both. Democratic appointees in recent years have been more inclined to leave active status with a Democrat in the White House than have Republican appointees during Republican administrations—and given President Trump’s potential to transform federal courts, liberal justices, especially those appointed by Democratic presidents, may be even less motivated to leave the bench. Table 2 shows the senior-status patterns of the 117 circuit judges currently now or soon to be in senior status.

TABLE 2: Judges Currently or Soon to Be in Senior Status

Took senior status during

R administrations

D administrations

R appointees (78)

41

37

D appointees (39)

13

26

And a large spate of Republican appointees leaving active status in the Trump administration’s third and fourth year would not reflect practice in recent Republican presidencies—1983 and 1984, and 1987 and 1988 for Reagan, for example. In the ten such years since 1983, Republican appointees on average took senior status, retired, or resigned 3.6 times per year, compared to 4.1 active-status departures for Republican appointees in all 41 years. Democratic appointees, in those same ten years, took senior status, retired, or resigned on average 1.9 times per year, versus 3.0 such departures per year for all years.

Given these patterns, and given the current environment and president, Democratic appointees seem unlikely to create many vacancies voluntarily over the next 18 months, and if they don’t, the party-of-appointing-president balance that Trump and his allies have achieved in his first two years may not look much different at the end of four years, and look similar to the 100-Republican-appointee majority that Obama inherited in 2009. Republican appointees may leave active status, but not at the pace of the last two years, limiting Trump’s ability to continue staffing the appellate courts with highly conservative appointees.

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By Russell Wheeler
The Trump White House, with Senate Republicans and the Federalist Society, has been appointing courts of appeals judges with bulldozer efficiency. The 29 circuit appointments to date is the highest number of any president at this point in his tenure, facilitated partly by a large number of vacancies. How many more appointments will occur in the next two years depends on how many more vacancies occur, which is uncertain at best.
Despite the 29 circuit appointments, Trump and company have only modestly changed the party-of-appointing-president balance on the court of appeals. Of Trump’s 29 circuit appointments, 19 replaced Republican appointees. Of the 16 current and announced vacancies, 9 were created by Republican appointees.
To be sure, Table 1 shows that when all current vacancies are filled (and were no more to occur), Republican appointees would comprise 54 percent of all active circuit judges, up from 44 percent on Inauguration Day. But only one court of appeals, that of the Third Circuit, will have changed from a Democratic to a Republican-appointee majority, although there will be noticeably more Republican appointees on the Second, Ninth, and Eleventh circuits’ courts. Mainly, though, the Trump circuit appointments have strengthened Republican-appointee majorities on four courts that already had such majorities—those of the Fifth, Sixth, Seventh, and Eighth circuits.
Table 1: Appellate Court Appointees on Trump's Inauguration Day and After Filling All Current Vacancies
1/20/2017
When all current and announced vacancies filled
Circuit
Judgeships
R Appts
D Appts
Vacant
R Appts
D Appts
Vacant
1st
6
2
4
0
2
4
0
2nd
13
4
7
2
6
7
0
3rd
14
5
7
2
8
6
0
4th
15
5
10
0
6
9
0
5th
17
9
5
3
12
5
0
6th
16
10
5
1
11
5
0
7th
11
6
3
2
9
2
0
8th
11
8
1
2
10
1
0
9th
29
7
18
4
13
16
0
10th
12
5
7
0
5
7
0
11th
12
3
8
1
6
6
0
DC
11
4
7
0
4
7
0
FED
12
4
8
0
4
8
0
% of:
179
72
99
17
96
83
0
J'ships
40%
50%
10%
54%
46%
0%
Active Js
44%
56%
54%
46%
How many more circuit judges can Trump appoint and how much more can he change the face of the appellate courts in the remaining two years of his first term?
Because the Senate will likely confirm almost anyone he nominates, the answer depends on how many vacancies occur, in particular vacancies created by Democratic appointees, an obvious fact noted by many observers.
A judgeship becomes vacant when the judge occupying it leaves active (full-time) status by taking senior status, retiring, resigning, dying, or getting appointed to another court, or getting impeached and convicted. (Congress creates vacancies when it creates additional judgeships to fill, but Congress has not created any circuit judgeships since 1990.)
Senior status is by far the most common form of vacancy creation. Judges become eligible to take this form of statutory semi-retirement, or to retire entirely (keeping their salary in either case), when they turn 65 and their years of service in life-tenured judgeships sum to 80 (the so-called “rule of 80”). (A 67 year-old judge, for example, who had been appointed at age 54, would be eligible: 67+ 13 = 80.) Based on data compiled from the Federal Judicial Center’s Federal Judge Biographical Data Base, of the 334 circuit judges who have created vacancies since 1978, 87 percent of them did so by going senior, retiring, or resigning. Senior status alone accounts for three fourths of all vacancies created.
In that period, on average about seven judges per year took senior status, although the number has ranged from one to 12 per year. On average, retirements occurred less than once a year and ... By Russell Wheeler
The Trump White House, with Senate Republicans and the Federalist Society, has been appointing courts of appeals judges with bulldozer efficiency. The 29 circuit appointments to date is the highest number of any president at this ... https://www.brookings.edu/blog/usc-brookings-schaeffer-on-health-policy/2018/11/28/the-trump-administration-side-stepped-rulemaking-processes-on-the-acas-state-innovation-waivers-and-it-could-make-their-new-section-1332-guidance-invalid/The Trump administration side-stepped rulemaking processes on the ACA’s State Innovation Waivers—and it could make their new section 1332 guidance invalidhttp://webfeeds.brookings.edu/~/582722020/0/brookingsrss/topics/executivebranch/
Wed, 28 Nov 2018 19:14:31 +0000https://www.brookings.edu/?p=550202

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By Christen Linke Young

Section 1332 of the Affordable Care Act allows states to seek a waiver of various ACA requirements if the state can demonstrate that its proposal would not reduce the number of people covered or the affordability or comprehensiveness of that coverage, or increase federal deficits. For the last several years, the Department of Health and Human Services and the Department of the Treasury have worked to give meaning to this statutory instruction.

A recent guidance document issued in late October by the two agencies represents the latest foray. It claims to make significant new policy, primarily by loosening the standards for comprehensive, affordable coverage. But importantly, the agencies chose to release it as guidance, rather than as a rule subject to the typical notice and comment rulemaking process. There are serious questions about whether the policy articulated in the guidance is a permissible interpretation of the underlying statute, but, at the very least, it is likely invalid for the agency to attempt to make this policy without a full rulemaking process.

Specifically, by releasing the document as guidance, the agencies are implicitly taking the position that it is an “interpretative rule” exempt from the standard rulemaking process under the Administrative Procedure Act (APA). However, the new guidance contains policy that would likely be classified under the APA as a “legislative rule.” As a result, the agencies likely cannot adopt these changes without notice and comment rulemaking, and the guidance may be invalid. Claims that the guidance is procedurally invalid open up potential new avenues for litigation surrounding section 1332 in general and could also become relevant to challenges regarding an approved waiver.

Since 1946, the Administrative Procedure Act has outlined the process agencies must follow when promulgating rules. The statute requires a standard notice and comment process for all policymaking, but exempts “interpretative” rules from these procedures.[1] Thus, courts have come to distinguish between “legislative” or “substantive” rules that do require notice and comment under the APA, and interpretative rules that do not.

It is important to emphasize that an agency action described as interpreting language that appears elsewhere is not necessarily an “interpretative rule.” Indeed, much of what agencies do in their traditional notice and comment rulemaking is focused on interpreting the statutes under their jurisdiction. As just one example, in a sweeping rulemaking process that began in 2009, the EPA concluded it had authority to and would begin regulating greenhouse gases. To accomplish that major policy change, the EPA was, formally, interpreting the term “air pollutant” in the Clean Air Act to include carbon dioxide. But a court would be quite unlikely to conclude that an agency could begin to regulate a major segment of the U.S. economy (and implement the result of a years-long legal battle) with a simple guidance document. Significant actions like this will require notice and comment under the APA.

Instead, courts have construed the term “interpretative rule” to mean something narrower.

In determining whether a rule is interpretative, courts generally start with the formulation that legislative rules have the “force and effect of law” while interpretative rules “advise the public of the agency’s construction of the statutes and rules which it administers.”[2] To give meaning to this distinction, courts have considered a number of factors:

Substantive change: A common thread in many cases is an attempt to understand whether the guidance is a meaningful change from the statute or existing legislative rule. Courts have looked to whether the guidance “effects a substantive regulatory change to the statutory or regulatory regime,”[3] or whether it “expand[s] the footprint of a regulation.”[4]

Nature of the interpretative leap: How significant is the agency’s interpretative leap? As one court explained, “the distinction between an interpretative rule and substantive rule … likely turns on how tightly the agency’s interpretation is drawn linguistically from the actual language of the statute.”[5] The more ambiguous the term the agency purports to interpret, and the more convoluted the agency’s interpretation is, the less likely the guidance is to be considered interpretative.

Legislative basis: Courts have looked to whether, in the absence of the supposedly interpretative rule, there would be an “adequate legislative basis”[6] for the agency’s future action. That is, if the agency had never issued their guidance, would they still have grounding in the statute or in a legislative rule for doing whatever it is the guidance promises they will do? If not, then the guidance will not be considered interpretative.

Rights and duties: Another formulation that courts have used is whether the guidance “imposes new rights or duties”[7] that would not otherwise exist.

Recent guidance on the ACA’s Section 1332 State Innovation Waivers is only valid if the waiver is an interpretative rule

Section 1332 of the ACA allows the federal government to grant states a waiver of various ACA requirements if the state can show they have an alternative plan that “will provide coverage that is at least as comprehensive…, will provide coverage and cost-sharing protections against excessive out-of-pocket spending that are at least as affordable…, will provide coverage to at least a comparable number of its residents…, [and] will not increase the federal deficit.”[8]

Comprehensiveness, affordability, coverage, and deficit neutrality are broad concepts. Since the passage of the ACA, stakeholders have wondered how to determine if a state plan satisfies these guardrails. In 2015, the federal government released a guidance document that explained the approach it would take in evaluating a state’s proposal.[9]

In October 2018, the government released new guidance that makes significant policy changes and expressly “supersedes” the 2015 guidance.[10] The primary thrust of the 2018 guidance is to weaken the comprehensiveness, affordability, and coverage guardrails, i.e., it states that the federal government would now deem a state plan to satisfy the comprehensiveness, affordability, and coverage tests that would have failed under the 2015 approach. But because neither guidance document was adopted using the notice and comment procedures in the APA, the guidance is only valid if it can be considered an interpretative rule under the APA.[11]

The 2018 guidance does not appear to be an interpretative rule

Much of the 2018 guidance does not seem consistent with the standards courts have articulated for an interpretative rule. The guidance makes substantial new policy that is a departure from the underlying statute, and thus should not be considered a valid interpretative rule.

Much of the 2018 guidance does not seem consistent with the standards courts have articulated for an interpretative rule.

Start by considering the agencies’ own description of the 2018 guidance document. “This guidance,” the agencies write, “intends to expand state flexibility.”[12] Elsewhere, the document explains that the guidance “aims to lower barriers” and that the agencies “are seeking to reduce burdens.” (Contrast that with parallel language in the 2015 guidance, which explains that the document “provides additional information about” the 1332 guardrails.) While a court will look deeper than this sort of precatory text, it is illuminating that the agencies say they expressly intended to expand the scope of 1332 waivers—and difficult to argue that they could satisfy that objective without affecting the rights and duties of third parties or “expanding the footprint” of the regulatory scheme.

The “Made Available” test

The most impactful policy in the new guidance affects the affordability and comprehensiveness guardrails. The 2015 guidance had explained that affordability and comprehensiveness would be measured by looking at what sort of health insurance coverage individuals would actually become enrolled in under the state’s proposed plan. The agencies articulated that this was a straightforward interpretation of the language in the statute, which directs the agencies to consider whether the state plan “will provide coverage” that is comprehensive and affordable. The 2018 guidance constructs a novel analysis—asking not what sort of coverage people will actually have, but rather what coverage is made “available” to people. Under the 2018 guidance, a state’s plan will be considered to satisfy the comprehensiveness and affordability guardrails even if residents will have less comprehensive or less affordable coverage compared to the status quo, as long as more comprehensive and more affordable coverage exist for individuals to hypothetically become enrolled in.

This new test is a significant departure from the statutory text. The agencies are reading the phrase “will provide coverage” to mean “will make available coverage.” If a court is asked to consider whether this is a valid interpretative rule, it will, as noted above, look to “how tightly the agency’s interpretation is drawn linguistically from the actual language of the statute.” It’s difficult to believe that the invention of the “made available” concept could survive this analysis. Put another way, one who is in fact provided comprehensive coverage is in a very different position from one who merely has that coverage made available to them—and so the guidance represents a major change from what the plain text of the statute more clearly envisions.

Defining coverage

The 2018 guidance also has a significant impact on a third 1332 guardrail: coverage. To analyze whether their plan meets this guardrail, states must quantify the number of people projected to have health coverage under the waiver. But to do so, states need to know what sort of health care arrangements “count” as coverage within the meaning of 1332. In the new guidance, the agencies purport to adopt a definition that classifies many kinds of health benefits as coverage—even if the benefit is limited and does not provide meaningful financial protection from medical costs. Specifically, the agencies explain that “in line with the Administration’s priority favoring private coverage, including [Association Health Plans] and [Short-Term Limited-Duration Insurance] plans,” they are broadening the definition of coverage to include those benefits. They accomplish this by defining coverage under 1332 as anything that would count as “health insurance coverage” under a 1997 regulation associated with implementation of HIPAA, which was intended to cast a wide net for regulation by federal and state law.[13]

As above, this change to the coverage guardrail is a significant interpretative leave from the plain text of the statute, and it inflicts a major substantive change to the program laid out in law. The statutory guardrails are structured to ensure that a state’s proposed waiver plan will result in outcomes that are broadly similar to the outcomes under the ACA. But allowing these sorts of plans—especially short-term limited-duration benefits—to count as “coverage” erodes that vision. The agencies are reaching for an unrelated cross reference to implement a meaningful new policy. Further, the fact that it is definitional does not render it an interpretative rule—the agencies explain that the change is intended to make short-term and association-based plans “count” under 1332, and that sort of significant new policy is exactly the type of change that makes a rule legislative rather than interpretative.

Additional changes that disqualify the guidance from being an interpretive rule

The guidance makes additional changes that may have less sweeping policy impacts but raise the same sorts of questions:

The guidance concludes that for purposes of meeting the coverage guardrail, it is permissible for a state plan to cause a temporary reduction in the number of people covered, if that is made up over time. There is no statutory basis for this sort of exception, and it implicates the same kinds of concerns about the nature of the agencies’ interpretative leap.

The agencies introduce the concept of the “magnitude” of changes in affordability, explaining that a waiver that reduces overall affordability could still be approved if the changes do not make people “substantially worse off.” In addition to being extremely vague, this new policy attempts to expand the agencies’ authority beyond what is conferred to them in statute, which cannot be permitted in an interpretative rule.

The guidance also addresses the statutory requirement that a state applying for a waiver have enacted a “State law that provides for State actions under a waiver under this section.” The guidance explains that the agencies may consider a state to have met this requirement in situations where the state has enacted only a general law related to ACA implementation, not anything specific to the proposed waiver. As above, the agencies are purporting to give themselves new authority to approve waivers, beyond what is available in statute, and an interpretative rule cannot accomplish that result.

Differences between the 2015 guidance and the 2018 guidance

Whether or not the 2018 guidance is a valid interpretative rule does not turn on the validity of the prior guidance, issued in 2015. Nonetheless, it is instructive to contrast the two documents. The 2015 guidance did introduce some vocabulary that does not expressly appear in the text of section 1332. For example, it explained that the agencies would consider the impact of the waiver on specific vulnerable groups, and that the analysis of comprehensiveness would be rooted in the ten categories of essential health benefits defined elsewhere in the ACA. But these sorts of explanations are much more clearly attempts to “advise the public of the agency’s construction” of section 1332. Critically, section 1332 provides that the Secretaries of Health and Human Services and the Treasury “may” approve waivers that satisfy the guardrails, but does not obligate them to do so. Therefore, to the extent the 2015 guidance explained how the agencies would use the discretion that is clearly granted to them in statute, they were simply offering the public information. Put another way, there is a straightforward “legislative basis” for the agencies to consider these factors, because the statute clearly provides the agencies with the discretion to deny waivers. The 2018 guidance, on the other hand, purports to allow the agencies to approve waivers that are not contemplated by the statute. That kind of action implicates the factors courts looks to in defining a legislative rule: it does not have an existing legislative basis and it “expands the footprint” of the statutory scheme.

Implications of an invalid interpretative rule

If the 2018 guidance is in fact a legislative, rather than interpretative, rule, then the agencies’ attempt to adopt it without notice and comment is impermissible, and that may have significant implications for future litigation.

First, it is important to acknowledge that the analysis of whether a given policy is a valid interpretative rule can quickly start to converge with the analysis of whether that policy is permissible under the statute at all. As noted above, the bigger the interpretative leap being taken by the agency, the more likely a rule is to be legislative.

It’s also very possible, however, that the leap may be so large it cannot be sustained under the statute at all. Similarly, the conclusion that a policy “expands the footprint” of the statutory scheme, imposes new “rights and duties,” or requires a “legislative basis” raises questions about whether that action is permissible under the statute. Thus, there is not a sharp line between procedural objections to the guidance, on the grounds that is should have been adopted using notice and comment, and substantive objections that it should not have been adopted at all. And, indeed, many of the factors suggesting the 132 guidance is not an interpretative rule also suggest that it is simply not a permissible interpretation of the Affordable Care Act.

If the 2018 guidance is in fact a legislative, rather than interpretative, rule, then the agencies’ attempt to adopt it without notice and comment is impermissible, and that may have significant implications for future litigation.

However, the use of a potentially invalid interpretative rule may create distinct possibilities for challenging the guidance, separate from any challenge to the underlying content. Entities that can plausibly assert that they will bear costs now, prior to any waiver approval, because of the position taken in this guidance may seek to enjoin its application. For example, a city or county in a state considering a 1332 waiver may be able to make such an argument. Or, to the extent the guidance affects the way a state is required to submit materials to the agencies for a 1332 waiver proposal—even if the state’s proposal would not “invoke” the policy changes announced in the guidance—there may be circumstances where a state could make such an argument.

The existence of the 2018 guidance enhances the ability of affected parties to argue that the dispute is ripe for litigation, because the agencies have clearly articulated the action they intend to take in a way that a court can meaningfully adjudicate. The agencies’ recent announcement that they will release “templates” for states to use in submitting waivers[14] further supports this line of reasoning, as it shows the agencies continuing down a path and imposing burdens on entities involved in the 1332 process. Enjoining the guidance would not immediately affect whether a particular waiver could be approved, but it could limit the agencies’ ability to apply the novel criteria that appear in the guidance.

Additionally, potential procedural issues associated with this guidance could become relevant in litigation after a waiver was approved. As just one example, to the extent the agencies rely on policies articulated in the guidance, the court could declare the guidance invalid and remand a waiver to the agency for additional consideration. While the details of any such challenge will depend on the particular waiver approved and the nature of the agency action, procedural deficiencies with this guidance would strip the agency of any deference and make it more likely that objections to a waiver approval would succeed.

[1] 5 U.S.C. § 533 (b). Note that agencies often describe their actions as “guidance” or “subregulatory guidance.” Guidance is not a category recognized under the APA; the APA’s formal rulemaking processes apply to all agency policymaking activity unless a specific exception applies. Specific exceptions are available for military functions, agency management (personnel, property, etc), and “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” The exception for interpretative rules is the only plausible pathway for the kind of policy being made in the recent 1332 guidance. Thus, regardless of how the agencies label the document, they must have implicitly concluded it is an interpretative rule.

[11] From 1997 to 2015, a line of cases developed in the D.C. Circuit holding that once an agency had released an interpretative rule, future changes to that interpretation often require notice and comment. Thus, under that line of reasoning, the 2018 guidance would be impermissible without notice and comment simply because it was a major change. However, in March 2015 the Supreme Court unanimously struck down the D.C. Circuit’s approach and held that interpretative rules could be changed with other interpretative rules that did not require notice and comment. Perez v. Mortgage Bankers Ass’n, 575 U.S. ___ (2015). Therefore, the question is not whether the 2018 guidance is a change from the 2015 guidance, but rather whether the 2018 guidance is itself an interpretative rule.

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By Christen Linke Young
Section 1332 of the Affordable Care Act allows states to seek a waiver of various ACA requirements if the state can demonstrate that its proposal would not reduce the number of people covered or the affordability or comprehensiveness of that coverage, or increase federal deficits. For the last several years, the Department of Health and Human Services and the Department of the Treasury have worked to give meaning to this statutory instruction.
A recent guidance document issued in late October by the two agencies represents the latest foray. It claims to make significant new policy, primarily by loosening the standards for comprehensive, affordable coverage. But importantly, the agencies chose to release it as guidance, rather than as a rule subject to the typical notice and comment rulemaking process. There are serious questions about whether the policy articulated in the guidance is a permissible interpretation of the underlying statute, but, at the very least, it is likely invalid for the agency to attempt to make this policy without a full rulemaking process.
Specifically, by releasing the document as guidance, the agencies are implicitly taking the position that it is an “interpretative rule” exempt from the standard rulemaking process under the Administrative Procedure Act (APA). However, the new guidance contains policy that would likely be classified under the APA as a “legislative rule.” As a result, the agencies likely cannot adopt these changes without notice and comment rulemaking, and the guidance may be invalid. Claims that the guidance is procedurally invalid open up potential new avenues for litigation surrounding section 1332 in general and could also become relevant to challenges regarding an approved waiver.
Defining “interpretative rule” vs. “legislative rule” under the Administrative Procedure Act
Since 1946, the Administrative Procedure Act has outlined the process agencies must follow when promulgating rules. The statute requires a standard notice and comment process for all policymaking, but exempts “interpretative” rules from these procedures.[1] Thus, courts have come to distinguish between “legislative” or “substantive” rules that do require notice and comment under the APA, and interpretative rules that do not.
It is important to emphasize that an agency action described as interpreting language that appears elsewhere is not necessarily an “interpretative rule.” Indeed, much of what agencies do in their traditional notice and comment rulemaking is focused on interpreting the statutes under their jurisdiction. As just one example, in a sweeping rulemaking process that began in 2009, the EPA concluded it had authority to and would begin regulating greenhouse gases. To accomplish that major policy change, the EPA was, formally, interpreting the term “air pollutant” in the Clean Air Act to include carbon dioxide. But a court would be quite unlikely to conclude that an agency could begin to regulate a major segment of the U.S. economy (and implement the result of a years-long legal battle) with a simple guidance document. Significant actions like this will require notice and comment under the APA.
Instead, courts have construed the term “interpretative rule” to mean something narrower.
In determining whether a rule is interpretative, courts generally start with the formulation that legislative rules have the “force and effect of law” while interpretative rules “advise the public of the agency’s construction of the statutes and rules which it administers.”[2] To give meaning to this distinction, courts have considered a number of factors:
- Substantive change: A common thread in many cases is an attempt to understand whether the guidance is a meaningful change from the statute or ... By Christen Linke Young
Section 1332 of the Affordable Care Act allows states to seek a waiver of various ACA requirements if the state can demonstrate that its proposal would not reduce the number of people covered or the affordability or ... https://www.brookings.edu/blog/fixgov/2018/11/09/around-the-halls-brookings-scholars-react-to-the-2018-midterms/Around the halls: Brookings scholars react to the 2018 midtermshttp://webfeeds.brookings.edu/~/579348300/0/brookingsrss/topics/executivebranch/
Fri, 09 Nov 2018 18:20:24 +0000https://www.brookings.edu/?p=547230

Intensified polarization

Gridlock is a safe prediction after this week’s congressional elections. With Republicans holding a Senate majority and Democrats regaining control of the House of Representatives, it is hard to imagine serious legislation taking place. The Democratic priorities of protecting the Affordable Care Act, building an inclusive economy, and passing tough ethics rules will run headlong into the GOP focus on confirming conservative judges, being tough on immigration, and protecting President Donald Trump’s flank during new House investigations. The political parties have such different electoral bases and policy visions right now that hyper-partisanship and extreme polarization are likely to intensify in the coming year.

In my forthcoming Brookings book Divided Politics, Divided Nation: Hyperconflict in the Trump Era, I explain how politics became a “blood sport” over the past 40 years and why liberals and conservatives no longer trust one another. I draw on my experiences growing up in a conservative rural Ohio community, teaching in the liberal Ivy League, and working in the heart of the D.C. establishment to explain the political, economic, and cultural aspects of polarization. The tensions unleashed by the Brett Kavanaugh confirmation hearings, tribal wars between the left and right, and economic disparities between the coasts and heartland have inflamed partisan disputes and led to a dangerously divided country. Nothing that happened this week is going to reduce those disputes. –Darrell M. West

Hidden moderation

There are several mistaken or misshapen narratives regarding the 2018 midterm elections. The most pervasive is the one about how the midterm election results furnish further evidence of unprecedented and deepening polarization. But what might count as counter-evidence to temper if not to overturn this left-to-right conventional wisdom?

Start with relevant recent survey research studies that paint dark polarization clouds but are not without their silver linings. For instance, as noted in the executive summary of “Hidden Tribes: A Study of America’s Polarized Landscape,” a 2018 report by More in Common based on a substantial national survey, there is “substantial evidence of deep polarization…rooted in something deeper than disagreements over policy,” but also “some evidence for optimism, showing that 77 percent of Americans believe that our differences are not so great that we cannot come together.”

Next, consider the national election results themselves. For instance, it is true that Congress, once home to nontrivial numbers of conservative or centrist Democrats and of liberal or moderate Republicans, now has precious few members who meet either description. That has been true and getting truer for a generation now. It was true for the outgoing 115th Congress, and it will be true for the incoming 116th Congress.

But, among Tuesday’s House seat winners were center-left Democrats who won in closely-divided or predominantly red districts (like Pennsylvania’s Conor Lamb) and center-right Republicans who won in closely-divided or predominantly blue districts (like Pennsylvania’s Brian Fitzpatrick).

And while a plurality if not a majority of the unprecedented number of women who will be in Congress come January are progressive Democrats, as a class, this cohort of congresspersons may well prove notable not only for making Congress less dominated by men but also less dominated by hyper-partisans.

And a little historical perspective is needed. Recall that in 1994, when the Republicans won control of the House for the first time in 40 years, there was lots of chatter about it being an earthquake election. In fact, the country was closely divided then, too: had fewer than 20,000 votes shifted from R to D in just a baker’s dozen of House races, the Speaker of the 104th Congress would have been not Republican Newt Gingrich, but Democratic incumbent Tom Foley.

Finally, nobody can truly believe that today’s America is more riven by politically salient social and civic differences than was the America of Franklin Delano Roosevelt or Barry Goldwater. But the leaders of earlier eras, left to right, were generally able to forge alliances, strike bargains, and effect compromises. They were pretty adept at forming party coalitions that did not depend on people liking or loving each other, or on Americans having homogeneous ideals or interests.

America’s moderate majority awaits a new generation of coalition- building leaders in both parties. The poisonous primary process might forestall their rise at both ends of Pennsylvania Avenue, but there is still reason to hope. –John J. DiIulio

Education policy from the top to the bottom of the ballot

What do the midterm election results mean for education policy? Expect House Democrats to convene oversight hearings that feature Secretary of Education Betsy DeVos and other top Department of Education officials. Democrats are likely to examine the Department’s policies related to a wide spectrum of civil rights issues and other issues, such as the regulation of for-profit colleges and proposed changes to Title IX policies related to campus sexual assault. DeVos’s public testimony during previous hearings has drawn sharp critiques but no detectable changes to her policies. Whether any impending hearings have an effect on policy remains to be seen.

The seven newly elected Democratic governors who are replacing Republicans may pursue progressive education agendas, focusing on issues like increased state funding for public K-12 education and universal, state-funded pre-K. Governors in three of these states (Kansas, Michigan, and Wisconsin) must work with Republican legislatures, which may create roadblocks.

Chief state school officer (CSSO) and state boards of education are also consequential positions for education policy. Elections for those positions have thus far produced little to no partisan change in either direction (races for CSSO in Arizona and California remain too close to call). However, in other states, we can expect some new Democratic appointees in these roles. Of the seven states that flipped to Democratic governors, four have unified Democratic government, and governors appoint the CSSO and/or school board. In Maine and Nevada the governor appoints both the CSSO and state board, in Illinois the governor appoints the state board, and in New Mexico the governor appoints the CSSO. In this context, we may expect Democrat-led shifts in education policy in these states. –Elizabeth Mann Levesque

Economic Issues May Take Center Stage in 2020

The midterms are just the beginning of a much bigger political fight leading up to 2020. The President campaigned primarily on the immigration issue while Democrats focused on health care. The chances that either will be resolved before 2020 are close to zero. There will be no wall and access to health care will not improve. More importantly, the current recovery is already one of the longest on record, so we could see a slowdown or a recession in the next two years. Watch, then, for a return to a focus on the economy.

There are three big questions yet to be answered:

Can Republicans win by continuing to focus on supply-side policies if the economy tanks despite their successful efforts to deregulate and cut taxes?

Will the white working class stick with Trump for cultural reasons in the face of a slowdown and evidence that wages are still growing very slowly while a trade war is taking its toll on many of their jobs?

Are the suburban women who mobilized for the midterms going to go back to baking cookies?

The political war for the soul of the country isn’t over but the battlefield could look very different by 2020. –Isabel Sawhill

Legislative stalemate

Legislative stalemate occurs more often during split party congresses (1981-6, 2001-2, 2011-13), compared to periods of unified or divided control.

With the parties poised to split control of Congress, increasingly polarized parties and an approaching presidential election will dampen enthusiasm for bipartisan deal-making. Trump says he’s willing to work with Democrats—so long as they don’t investigate his administration. Democrats won’t take that bait. That means Trump is unlikely to work with Democrats to repair infrastructure or improve health care. What’s more, Democrats will be wary about cutting taxes on the middle class without raising them on the wealthy, and a Democratic House will oppose any cuts to entitlements. Nor is a split-party Congress likely to agree to a congressional budget. That means Republicans will not be able to resort to reconciliation bills—which cannot be filibustered—to advance measures by simple majority.

But Congress will not grind to a halt. The government is expected to hit its debt ceiling in early March. And lawmakers will want to lift strict limits on domestic and defense spending come fall 2019. How Trump and Congress exploit these must-pass bills remains to be seen. But the sausage-making won’t look or smell very good. –Sarah Binder

An extreme minority

For all the drama of election night, the midterms ended up more or less where many Congress watchers expected they would: Democrats took control of the House by picking up at least 30 seats (as of this writing), many in suburban areas and including at least 15 districts won by Hillary Clinton in 2016. In the Senate, meanwhile, Republicans leveraged an especially favorable map to a net gain of two or three seats—more than some expected at various points this year. But given that Democrats were defending 10 seats in states won by Trump in 2016, Democratic losses could have been much more significant than they were.

As we look towards the 116th Congress, major changes are in store for the House, and not just in terms of party control. More than 40 percent of current House Democrats have never served in the majority. Add the new House freshmen, and you get a new majority with a notable learning curve. On the Republican side, the Republicans leaving seats picked up by Democrats tend to be among the relatively more moderate members of the current conference. A more extreme minority, then, likely awaits the new Democratic majority. –Molly Reynolds

The stolen Georgia election

The midterm elections have confirmed that some opportunities can be stolen. The most flagrant demonstration was in the Georgia governor’s race where acting Secretary of State and candidate, Brian Kemp, made it harder for certain residents to register and exercise their voting rights, especially those who might have favored his opponent, Georgia House Minority Leader Stacey Abrams.

Leading up to election night, Kemp used his role to deny 55,000 voter registrations that failed “exact match” verification. Seventy percent of these applications were from black voters. He also blamed Democrats for hacking the state’s voter systems, a claim that was never substantiated. On the day of the election, polling locations had broken systems and were insufficiently staffed. Before certain polling locations closed, the courts ordered extended hours due to these flagrancies.

All of these activities were on Kemp’s watch as the steward of his state’s electoral processes.

On the day after the election, Kemp dismissed Abrams’ request for a vote-by-vote count of ballots, while loudly claiming victory in the race. His office also published the personal information of the state’s absentee voters.

While Georgia has historically been embroiled in voter suppression efforts, Kemp’s efforts to disenfranchise his state’s voters are incorrigible and unfair.

Kemp’s actions were perhaps the worst-case of contemporary voter suppression. While Abrams has not yet conceded, one thing is clear—elected officials who are supposed to be responsible for ethical and fair electoral processes should either be recused from these roles from the date of their intent to run, or step down all together. On Thursday, Kemp finally stepped down.

An election may have been stolen on Tuesday and this time, we know the thief. –Nicol Turner Lee

The most important takeaway from the 2018 midterm elections

Not surprisingly, President Trump at his post-election press conference described the midterms as a big victory for him. He cherry-picked his way through the results and found convincing evidence that his personal involvement in the campaign played a central role in his party’s stunning and unprecedented success. After 6,000+ documented untruths (otherwise known as lies) from him during his 21 months in office, we’ve become inured to his flights of fantasy. But lies are the currency of would-be tyrants. An effective resistance to tyranny must insist on truth if it is to retain the blessings of liberty and justice. Let us start with the midterm elections.

With the hardening of partisan identities and the nationalization of elections, midterm elections are increasingly referendums on the performance of the president. The best measures are the national popular vote for the House of Representatives and the shift in seats won by the president’s party since the last election. Republicans lost that contest by seven percentage points, and fell ten points lower than they won in the previous midterm elections. They lost a net of 30 to 35 seats in the House (pending final counts), giving Democrats a clear majority. The President’s net approval rating was a negative 10 percentage points, mirroring his party’s national vote for the House. Turnout jumped from 37 to 49 percent of the eligible electorate. Thirty million more Americans were motivated to vote in 2018 than in 2014, an unprecedented increase.

Democrats in the House now have the means as well as the incentive to check the abuses of power in the presidency and begin the long and difficult task of reclaiming our democracy. –Thomas Mann

What’s not the matter with Kansas

Do Trumpism and tribalism reign supreme in red America? Or do real-world performance and local issues count? One race I watched as a bellwether is the gubernatorial contest in Kansas, which posed the question cleanly–and showed the limits of Trumpism, even in the Republican heartland.

Former Gov. Sam Brownback, elected in 2010, was a fiercely ideological conservative who tested the limits even in his predominantly Republican state. In what he called a “real live experiment” in supply-side economics, he and the Republican legislature deeply cut taxes. The result was not as advertised. “Kansas has been struggling for years with massive budget shortfalls,” wrote The Washington Post. “Those have cut deep into budgets for roads, schools and hospitals in a way that’s hard for the average Kansan to miss.” Deeply unpopular (with an approval rating in the low 20s), Brownback stepped down in January of this year to take a Trump Administration job, and Lieutenant Governor Jeff Colyer took over.

The stage was thus set for a vivid contrast in the 2018 Republican gubernatorial primary battle: Colyer, a mainstream conservative with a solid record in statewide office, faced Kris Kobach, a nationally ambitious architect of President Trump’s wars on immigration and (imaginary) voter fraud. Trump endorsed Kobach, who won the primary. In the general election, Kobach then faced Democratic state senator Laura Kelly, an unflashy legislator who had supported a bipartisan tax increase to repair the state’s finances. On Tuesday, Kelly won.

A Kobach victory would have signaled that Kansas was on board with Trump’s agenda and was willing to overlook Brownback’s failure and Kobach’s extremism. Instead, the voters signaled that ideology and party have their limits even in the red heartland. It is not lost on Republicans that they would probably have won with Colyer, whom the party establishment had favored.

Obstruction and collusion

The president’s ability to dodge accountability for him and those around him for possible obstruction and collusion ended on November 6th. If at least one house of Congress had not changed hands, he could perhaps have terminated Special Counsel Mueller’s investigation with impunity. Now, the House of Representatives is there to pick up the torch if he tries—or even if he doesn’t. There will be oversight of much more as well, including emoluments, ethics violations, nepotism, and outrageous self-dealing by Mr. Trump, his family and his cabinet and appointees. But the greatest personal exposure for the president is on obstruction, with significant risk on collusion as well. We explained both in recentBrookings reports. –Norman Eisen

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https://www.brookings.edu/wp-content/uploads/2018/11/us-voting-booths.jpg?w=270By Christine Stenglein
With the results of the midterm elections (mostly) in, we asked Brookings scholars for their reactions to what happened and their reflections on what will come next in U.S. politics and policy. You can read each of them below:
- Intensified polarization, by Darrell M. West - Hidden moderation, by John J. DiIulio - Education policy from the top to the bottom of the ballot, by Elizabeth Mann Levesque - Economic Issues May Take Center Stage in 2020, by Isabel Sawhill - Legislative stalemate, by Sarah Binder - An extreme minority, by Molly Reynolds - The stolen Georgia election, by Nicol Turner Lee - The most important takeaway from the 2018 midterm elections, by Thomas Mann - What’s not the matter with Kansas, by Jonathan Rauch - Obstruction and collusion, by Norman Eisen
Intensified polarization
Gridlock is a safe prediction after this week’s congressional elections. With Republicans holding a Senate majority and Democrats regaining control of the House of Representatives, it is hard to imagine serious legislation taking place. The Democratic priorities of protecting the Affordable Care Act, building an inclusive economy, and passing tough ethics rules will run headlong into the GOP focus on confirming conservative judges, being tough on immigration, and protecting President Donald Trump’s flank during new House investigations. The political parties have such different electoral bases and policy visions right now that hyper-partisanship and extreme polarization are likely to intensify in the coming year.
In my forthcoming Brookings book Divided Politics, Divided Nation: Hyperconflict in the Trump Era, I explain how politics became a “blood sport” over the past 40 years and why liberals and conservatives no longer trust one another. I draw on my experiences growing up in a conservative rural Ohio community, teaching in the liberal Ivy League, and working in the heart of the D.C. establishment to explain the political, economic, and cultural aspects of polarization. The tensions unleashed by the Brett Kavanaugh confirmation hearings, tribal wars between the left and right, and economic disparities between the coasts and heartland have inflamed partisan disputes and led to a dangerously divided country. Nothing that happened this week is going to reduce those disputes. –Darrell M. West
Hidden moderation
There are several mistaken or misshapen narratives regarding the 2018 midterm elections. The most pervasive is the one about how the midterm election results furnish further evidence of unprecedented and deepening polarization. But what might count as counter-evidence to temper if not to overturn this left-to-right conventional wisdom?
Start with relevant recent survey research studies that paint dark polarization clouds but are not without their silver linings. For instance, as noted in the executive summary of “Hidden Tribes: A Study of America’s Polarized Landscape,” a 2018 report by More in Common based on a substantial national survey, there is “substantial evidence of deep polarization…rooted in something deeper than disagreements over policy,” but also “some evidence for optimism, showing that 77 percent of Americans believe that our differences are not so great that we cannot come together.”
Next, consider the national election results themselves. For instance, it is true that Congress, once home to nontrivial numbers of conservative or centrist Democrats and of liberal or moderate Republicans, now has precious few members who meet either description. That has been true and getting truer for a generation now. It was true for the outgoing 115th Congress, and it will be true for the incoming 116th Congress.
But, among Tuesday’s House seat winners were center-left Democrats who won in closely-divided or predominantly red districts (like ... By Christine Stengleinhttps://www.brookings.edu/experts/ruth-marcus/Ruth Marcushttp://webfeeds.brookings.edu/~/579172202/0/brookingsrss/topics/executivebranch/
Thu, 08 Nov 2018 20:07:13 +0000https://www.brookings.edu/?post_type=expert&p=547179

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By Louis Serino

Ruth Marcus is deputy editorial page editor for The Washington Post. She also writes a regular column focusing on domestic policy and politics, and she is an MSNBC/NBC News contributor. Marcus has been with The Washington Post since 1984. She joined the national staff in 1986, covering campaign finance, the Justice Department, the Supreme Court, and the White House. From 1999 through 2002, she served as deputy national editor, supervising reporters who covered money and politics, Congress, the Supreme Court, and other national issues. She joined the editorial board in 2003 and began writing a regular column in 2006. A graduate of Yale College and Harvard Law School, she was a finalist for the Pulitzer Prize for Commentary in 2007.

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By Louis Serino
Ruth Marcus is deputy editorial page editor for The Washington Post. She also writes a regular column focusing on domestic policy and politics, and she is an MSNBC/NBC News contributor. Marcus has been with The Washington Post since 1984. She joined the national staff in 1986, covering campaign finance, the Justice Department, the Supreme Court, and the White House. From 1999 through 2002, she served as deputy national editor, supervising reporters who covered money and politics, Congress, the Supreme Court, and other national issues. She joined the editorial board in 2003 and began writing a regular column in 2006. A graduate of Yale College and Harvard Law School, she was a finalist for the Pulitzer Prize for Commentary in 2007. By Louis Serino
Ruth Marcus is deputy editorial page editor for The Washington Post. She also writes a regular column focusing on domestic policy and politics, and she is an MSNBC/NBC News contributor. Marcus has been with The Washington Post since ... https://www.brookings.edu/research/considering-collusion-a-primer-on-potential-crimes/Considering collusion: A primer on potential crimeshttp://webfeeds.brookings.edu/~/577823016/0/brookingsrss/topics/executivebranch/
Thu, 01 Nov 2018 10:00:48 +0000https://www.brookings.edu/?post_type=research&p=545230

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By Barry H. Berke, Dani R. James, Noah Bookbinder, Norman Eisen

As we explain in a new report, “collusion” is not the name of a codified crime.1 Nevertheless, the term has come to be shorthand for the possibility that the Trump campaign, its advisors or the president himself coordinated with Russia to help Trump win the 2016 presidential election. Indeed, Special Counsel Robert Mueller has been authorized to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and to prosecute federal crimes arising from that investigation.2

The president and his proxies have frequently advanced the claim that such coordination, even if it occurred, would not be unlawful. Their refrain that “collusion is not a crime” is in one sense correct. Collusion is not a single crime. It is instead a rubric that encompasses many possible offenses. We detail some of the principal ones in this report.

All turn on the possibility that Trump or his associates took action in connection with Russia’s attempts to impact the outcome of our country’s presidential election. The criminal nature of the Russian effort is already well-known. The special counsel’s 191 charges brought against 35 individuals and companies spell out some of the crimes allegedly committed in furtherance of the Russian attack on our democracy. Those include indictments of Russian individuals and entities for their participation in conspiracies to hack into the computer and email systems of Trump’s political opponents and release damaging information and to engage in a social media disinformation campaign using fake identities.

It logically follows that if the president or his campaign aides worked with the Russians in connection with those efforts, they too may be liable. That is not just common sense—it is also the law. The specific “collusion” crimes that may be implicated by any coordinated efforts between the president or his campaign aides and Russian operatives principally fall under the rubric of conspiracy: an agreement to further illegal action. The core federal conspiracy statute, 18 U.S.C. § 371, would be implicated if there was any agreement between members of the Trump campaign (or Trump himself) and Russian agents to do something that the law prohibits.

For example, if, in connection with the infamous June 2016 Trump Tower meeting, the Russians and a Trump representative tacitly or explicitly agreed about the release or use of illegally obtained information, that could credibly support a conspiracy charge. In fact, there is already enough evidence of this potential “collusion” crime to warrant a searching review of those events, including the fact that within hours of the Russian offer of “dirt” regarding Hillary Clinton in June 2016, Mr. Trump announced a major speech promising revelations about his opponent.

Another example of a “collusion” crime is conspiracy to defraud the United States, which the special counsel charged against Russian social media propagandists and hackers in a February 2018 indictment. Their cyber-misconduct—which included buying political advertisements on social media and organizing political rallies without revealing their Russian identities—defrauded the U.S. by interfering with our 2016 federal elections. If Trump campaign operatives played a role in these activities—for example, by strategically advising the social media disinformation efforts carried out by Russian operatives, or planning speeches or other campaign events around that disinformation—then the Trump campaign could also plausibly be a part of Russia’s broader conspiracy to defraud the United States.

These kinds of possible campaign encouragement of, or involvement in, illegal Russian activity do not just implicate conspiracy law. Russians have been indicted for violating the Computer Fraud and Abuse Act, and their conduct could potentially implicate the Wiretap Act as well. And even if the campaign did not encourage or direct the Russian hacking, individuals associated with the campaign could still be subject to prosecution for aiding and abetting—in lay terms, helping—a violation of those statutes. Aiding and abetting liability could become a factor if, for example, campaign operatives took action to encourage the Russians to publish or otherwise use the hacked materials.

The criminal statutes that may have been violated by possible “collusion” with Russia do not end there. If the president or his surrogates knowingly accepted something of value from the Russians, such as harmful information about his opponent, that could be an illegal campaign contribution by foreign nationals. That is an election law crime. And if the president accepted that information in exchange for the promise of some future action he or his administration would take if his campaign proved successful (such as taking a more accommodating posture toward the Russian invasion of Ukraine), that could constitute an illegal quid pro quo—that is, bribery. If the Russians only informed the campaign about their plans to disseminate stolen emails after the hacking and the campaign took any steps to conceal the crime, that could constitute the separate criminal offense of misprision of a felony.

Today’s report analyzes six potential offenses that are most likely to be relevant to the special counsel’s investigation of “collusion.” They include:

Conspiracy to Commit Offense or to Defraud the United States, 18 U.S.C. § 371, (Page 15);

Conspiracy is the most sweeping of these crimes, and it can have as its object the commission of the other crimes enumerated here. But it is a separate and distinct crime that stands on its own. In other words, a person can be guilty of conspiracy even if he does not successfully carry out the conspiracy’s illegal aims.

As with any investigation or prosecution, the law’s reach is informed by the specific facts. Certain crimes may not ultimately be substantiated in light of what took place, while others may be conclusively shown to have occurred. There are nuances to the applicability of each of the statutes discussed below that will depend on facts yet to be disclosed, and with more information additional crimes may also be revealed.

This list is also only a selection of the potential criminal collusion that may be implicated by the Trump campaign’s role in the Russian interference in the 2016 election. There is of course the possible cover-up of any collusion, which implicates a host of additional crimes such as obstruction of justice and perjury.

In short, any suggestion that “collusion is not a crime” is false. While there may not yet be definitive proof that the Trump campaign or its associates engaged in criminal collusion with Russia, there are legitimate questions regarding whether the president and those close to him worked with or alongside the Russians in their efforts to interfere in the 2016 presidential election, questions that demand answers. The American people have a fundamental right to know if the president of the United States or those close to him worked with Russia to win the election and undermine American democracy—in violation of our criminal law.

Note: CREW is a party in active litigation involving President Trump and the administration and Barry Berke and Kramer Levin are outside pro bono counsel to CREW. The authors have no other relevant interests to disclose.

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By Barry H. Berke, Dani R. James, Noah Bookbinder, Norman Eisen
As we explain in a new report, “collusion” is not the name of a codified crime.1 Nevertheless, the term has come to be shorthand for the possibility that the Trump campaign, its advisors or the president himself coordinated with Russia to help Trump win the 2016 presidential election. Indeed, Special Counsel Robert Mueller has been authorized to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and to prosecute federal crimes arising from that investigation.2
The president and his proxies have frequently advanced the claim that such coordination, even if it occurred, would not be unlawful. Their refrain that “collusion is not a crime” is in one sense correct. Collusion is not a single crime. It is instead a rubric that encompasses many possible offenses. We detail some of the principal ones in this report.
All turn on the possibility that Trump or his associates took action in connection with Russia’s attempts to impact the outcome of our country’s presidential election. The criminal nature of the Russian effort is already well-known. The special counsel’s 191 charges brought against 35 individuals and companies spell out some of the crimes allegedly committed in furtherance of the Russian attack on our democracy. Those include indictments of Russian individuals and entities for their participation in conspiracies to hack into the computer and email systems of Trump’s political opponents and release damaging information and to engage in a social media disinformation campaign using fake identities.
It logically follows that if the president or his campaign aides worked with the Russians in connection with those efforts, they too may be liable. That is not just common sense—it is also the law. The specific “collusion” crimes that may be implicated by any coordinated efforts between the president or his campaign aides and Russian operatives principally fall under the rubric of conspiracy: an agreement to further illegal action. The core federal conspiracy statute, 18 U.S.C. § 371, would be implicated if there was any agreement between members of the Trump campaign (or Trump himself) and Russian agents to do something that the law prohibits.
For example, if, in connection with the infamous June 2016 Trump Tower meeting, the Russians and a Trump representative tacitly or explicitly agreed about the release or use of illegally obtained information, that could credibly support a conspiracy charge. In fact, there is already enough evidence of this potential “collusion” crime to warrant a searching review of those events, including the fact that within hours of the Russian offer of “dirt” regarding Hillary Clinton in June 2016, Mr. Trump announced a major speech promising revelations about his opponent.
Another example of a “collusion” crime is conspiracy to defraud the United States, which the special counsel charged against Russian social media propagandists and hackers in a February 2018 indictment. Their cyber-misconduct—which included buying political advertisements on social media and organizing political rallies without revealing their Russian identities—defrauded the U.S. by interfering with our 2016 federal elections. If Trump campaign operatives played a role in these activities—for example, by strategically advising the social media disinformation efforts carried out by Russian operatives, or planning speeches or other campaign events around that disinformation—then the Trump campaign could also plausibly be a part of Russia’s broader conspiracy to defraud the United States.
These kinds of possible campaign encouragement of, or involvement in, illegal Russian activity do not just ... By Barry H. Berke, Dani R. James, Noah Bookbinder, Norman Eisen
As we explain in a new report, “collusion” is not the name of a codified crime.1 Nevertheless, the term has come to be shorthand for the possibility that the Trump ... https://www.brookings.edu/blog/brown-center-chalkboard/2018/10/31/new-report-on-essa-accountability-regulation-examines-agency-responsiveness-and-rule-durability/New report on ESSA Accountability regulation examines agency responsiveness and rule durabilityhttp://webfeeds.brookings.edu/~/577680562/0/brookingsrss/topics/executivebranch/
Wed, 31 Oct 2018 14:06:01 +0000https://www.brookings.edu/?p=545579

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By Diana Quintero

The rulemaking process has received a great deal of attention over the course of Trump’s presidency, in part because of the administration’s commitment to deregulation—and, in particular, its focus on repealing Obama-era rules.

Today, a new report from the Brown Center on Education Policy takes a deep dive into the process behind the Accountability and State Plans rule (the Accountability rule). This regulation was proposed by the Department of Education “to provide clarity and support” to state and local education agencies in implementing core provisions of the Every Student Succeeds Act (ESSA), the law that replaced No Child Left Behind. The final rule was published in the final days of the Obama administration and subsequently repealed via the Congressional Review Act. This case study provides insight into how the public, agencies, and Congress shape the content and lifespan of final rules. In particular, it examines the relationship between agency responsiveness and rule durability.

In the report, Brown Center Fellow Elizabeth Mann Levesque explores the input that the department received from organizations via public comments and members of Congress via oversight hearings, as well as how the department revised the draft rule in response to this feedback. As a preview, the report finds that the department received a good deal of criticism on several high-profile aspects of the rule. In turn, the department was relatively responsive to this feedback. However, the changes the department made to the draft rule were ultimately not enough to satisfy Republican members of Congress, who repealed the final rule early in 2017.

Input from organizations

In the process of revising this rule, the Department of Education received feedback from a number of different sources. This report focuses specifically on feedback from organizations who submitted public comments. The research team identified 512 comments submitted by organizations, representing a small but important subset of the total 21,000 comments on the rule; this is because prior research suggests that agencies generally give more weight to sophisticated or technical comments. Compared to individuals, organizations are typically in a better position to provide this type of feedback given their resources and expertise.

timing of the rulemaking process? The analysis in this report points to the importance of understanding these and related questions about when and how the relationship between agency responsiveness and rule durability shapes the public policies articulated in final rules.

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https://www.brookings.edu/wp-content/uploads/2017/01/gs_20170116_devos-trump.jpg?w=270By Diana Quintero
The rulemaking process has received a great deal of attention over the course of Trump’s presidency, in part because of the administration’s commitment to deregulation—and, in particular, its focus on repealing Obama-era rules.
Today, a new report from the Brown Center on Education Policy takes a deep dive into the process behind the Accountability and State Plans rule (the Accountability rule). This regulation was proposed by the Department of Education “to provide clarity and support” to state and local education agencies in implementing core provisions of the Every Student Succeeds Act (ESSA), the law that replaced No Child Left Behind. The final rule was published in the final days of the Obama administration and subsequently repealed via the Congressional Review Act. This case study provides insight into how the public, agencies, and Congress shape the content and lifespan of final rules. In particular, it examines the relationship between agency responsiveness and rule durability.
In the report, Brown Center Fellow Elizabeth Mann Levesque explores the input that the department received from organizations via public comments and members of Congress via oversight hearings, as well as how the department revised the draft rule in response to this feedback. As a preview, the report finds that the department received a good deal of criticism on several high-profile aspects of the rule. In turn, the department was relatively responsive to this feedback. However, the changes the department made to the draft rule were ultimately not enough to satisfy Republican members of Congress, who repealed the final rule early in 2017.
Input from organizations
In the process of revising this rule, the Department of Education received feedback from a number of different sources. This report focuses specifically on feedback from organizations who submitted public comments. The research team identified 512 comments submitted by organizations, representing a small but important subset of the total 21,000 comments on the rule; this is because prior research suggests that agencies generally give more weight to sophisticated or technical comments. Compared to individuals, organizations are typically in a better position to provide this type of feedback given their resources and expertise.
As shown by the figure above (taken from the report), the department received input from a wide variety of organizations. Slightly more than half of the comments come from advocacy organizations or local education agencies. Although only 13 percent of comments came from state governments, 82 percent of the states had a least one state official submitting comments. Other organizations including research centers, labor unions, and faith-based organizations comprised a smaller share of the comments.
To analyze the input that organizations provided, the research team coded each comment to identify each section(s) the commenter provided feedback on. For each section within a comment, researchers identified whether the commenter requested a major change, minor change, or expressed support. Major changes include requests to heavily revise the substantive requirements of a section, statements of opposition to the regulation section, and recommendations to delete a section entirely. Minor changes include requests for clarification, definitions, examples, guidance, or other small adjustments consistent with the substance of the proposed section. In sections coded as support, the commenter explicitly expressed support for a specific section of the regulation. While 44 percent of mentions were coded as major change and 34 percent as minor changes, only 22 percent were coded as support. (Please see the full report for additional details on the coding process.)
Based on these data, the report analyzes which sections of the regulation received the most requests for “major changes” and then ... By Diana Quintero
The rulemaking process has received a great deal of attention over the course of Trump’s presidency, in part because of the administration’s commitment to deregulation—and, in particular, its focus on ... https://www.brookings.edu/research/responsiveness-and-durability-an-analysis-of-the-accountability-and-state-plans-rule/Responsiveness and durability: An analysis of the Accountability and State Plans rulehttp://webfeeds.brookings.edu/~/577672362/0/brookingsrss/topics/executivebranch/
Wed, 31 Oct 2018 12:00:13 +0000https://www.brookings.edu/?post_type=research&p=545511

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By Elizabeth Mann

Introduction

Agencies in the federal bureaucracy shape public policy by issuing regulations, also known as rules. Final rules carry the weight of law (Garvey 2017).1 As a result, the rulemaking process affords agencies a great deal of influence over federal policy. The political appointees who head agencies are members of the president’s administration, tasked with steering policy in the direction of the administration’s goals (Lewis 2004). In this context, it should come as no surprise that agencies approach the rulemaking process strategically. For example, agencies attempt to pre-empt judicial review of the rule (Cheit 1990) and seek the optimal political conditions under which to finalize rules (Potter 2017). This research suggests that, through the rulemaking process, agencies work to minimize the chances that a final rule will subsequently be revised or repealed. In other words, it appears that agencies attempt to increase rule durability, where durability refers to the final rule remaining in effect without substantive revisions.

At the same time, agency behavior during the rulemaking process is constrained by procedural requirements. Many of these requirements were initially established in the Administrative Procedures Act of 1946 (APA), which was adopted to rein in the power of the federal bureaucracy (Kerwin and Furlong 2011). Additional requirements with respect to the rulemaking process have been added over time through executive orders, court decisions, and legislation (Kerwin and Furlong 2011; Garvey 2017; Carey 2013). Congressional committees may also hold oversight hearings during the rulemaking process in which they call in witnesses to discuss draft rules, including agency heads.

As a result of these procedural requirements and the prerogative of Congress to hold oversight hearings, agencies may receive input from a wide variety of stakeholders during the rulemaking process. This report focuses on the role of feedback received via congressional oversight hearings and the notice and comment process. Established by Section 553 of the APA, the notice and comment process requires agencies to solicit input from the public on draft rules (Kerwin and Furlong 2011).2 Agencies can decide whether or not to incorporate commenters’ feedback into the final rule, although they must respond to the issues that commenters raise and justify their decisions about the content of the final rule.

Agencies could thus choose not to incorporate into the final rule the feedback they receive from commenters and from members of Congress. Indeed, if feedback is at odds with the administration’s interpretation of the relevant law, the agency may have substantial motivation to defend the draft rule as written rather than to revise it. However, doing so may threaten the durability of the final rule. Public commenters may file a lawsuit disputing the agency’s decision to ignore their input, raising the risk of judicial review of the rule. In subsequent administrations, new political appointees may revise the rule to fix what they believe the agency got wrong the first time. Members of Congress who feel the agency did not adequately address their concerns raised during rulemaking could repeal the rule shortly after it is finalized using the Congressional Review Act (CRA). Even after the window to use the CRA closes, Congress could enact legislation that revises or overwrites a rule (Potter 2017).

In short, while attempting to create durable public policy through final rules, agencies must adhere to procedural requirements and anticipate the potential for oversight. How do agencies attempt to balance these priorities, how does the final rule reflect these efforts, and with what implications for rule durability? These questions speak to a broader inquiry about bureaucratic policymaking and oversight of this process: What is the nature of the relationship between agency responsiveness and rule durability?

The subsequent analysis offers an exploration of these important issues through an in-depth case study of the Accountability and State Plans rule, referred to hereafter as the Accountability rule. This rule offers an excellent opportunity to examine the relationship between agency responsiveness and rule durability. The Department of Education proposed this rule to implement core provisions of the Every Student Succeeds Act (ESSA), signed by President Obama in December 2015. The Accountability rule had the potential to be highly consequential for education policy, and the department’s proposed rule garnered a great deal of attention. The House and Senate committees on education held nine hearings in 2016 related to the department’s implementation of ESSA, some of which focused heavily on this rule, and the department received over 21,000 public comments on the draft Accountability rule.

This rulemaking process was marked by disagreements between Republican members of Congress and President Obama’s appointee, then-Secretary of Education John King. As the analysis below indicates, on several aspects of the draft rule, the department received substantial opposition from commenters and members of Congress alike. This context provides an opportunity to examine how the agency responded to this feedback.

Furthermore, the timing of this rulemaking process and the ultimate fate of the final rule makes it particularly useful for examining the relationship between responsiveness and the durability of final rules. The draft rule was published in spring 2016, and the public comment period and congressional hearings occurred before the 2016 presidential election. During this time, it was widely expected that the Democratic presidential candidate, Hillary Clinton, would beat the Republican nominee, Donald Trump, in the 2016 presidential election. Of course, Trump won the election in a historic upset. Just weeks later, on Nov. 29, the final Accountability rule was published. Within months, the rule was repealed via the CRA, one of only a handful of rules ever to be repealed in this manner (Lipton and Lee 2017).

The rule’s repeal was far from inevitable, raising the question: Why was it repealed? Further, and of particular interest here, what might its repeal tell us about the relationship between agency responsiveness to concerns raised during the rulemaking process and rule durability? While use of the CRA is rare, this analysis is nonetheless relevant more broadly. The analysis begins with a close look at how the Department of Education responded to public comments, a process designed to increase transparency and accountability in the rulemaking process (Kerwin and Furlong 2011), followed by a discussion of how the department responded to opinions expressed by congressional Republicans, the majority party before and after the election. The report then examines how Congress reacted to the department’s final rule, offering insight into the relationship between responsiveness and rule durability. The relationships at the core of this analysis, between the agency and the public and the agency and Congress, remain relevant for many rules and the rulemaking process more generally.

In this context, this report explores the following questions with respect to the Accountability rule: What input did the department receive from organizations and members of Congress, how did the department respond, and what does this rulemaking process suggest about the relationship between agency responsiveness and rule durability?

The rulemaking process

This section offers a streamlined introduction to the rulemaking process, highlighting the main steps. Many other steps often occur along the way; see Carey (2013) for a detailed discussion.

Following passage of new legislation, agencies often write new rules to clarify how a specific component of the law should be implemented.3 Often, this process begins with an agency drafting a rule. Before being published for public comment, rules deemed “significant” must receive approval from the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (Carey 2013, p. 2). After receiving approval (if necessary), the agency publishes the draft rule, typically through a Notice of Proposed Rulemaking (NPRM) in the Federal Register (Carey 2013, p. 6).4 The public then has an opportunity to read the draft rule and submit written comments, typically for a period of 30 to 60 days (Carey 2013, p. 6). This is known as the comment period. As discussed above, members of Congress may also hold oversight hearings during the rulemaking process.

Notably, public comments and congressional oversight hearings are both mechanisms that provide for public accountability in the rulemaking process, wherein agencies (non-elected bodies of government) issue rules that profoundly affect public policy. By giving members of the public an opportunity to provide input on proposed rules and requiring agencies to respond to this feedback in writing, the comment period was designed to introduce more transparency and accountability into the rulemaking process (Kerwin and Furlong 2011). The comment process is one avenue through which agencies can receive information relevant to the proposed rule from experts, practitioners, and those whose work or lives would be affected by the rule (Kerwin and Furlong 2011, p. 169). For their part, congressional oversight hearings provide opportunities to hold agencies accountable for their actions (McCubbins and Schwartz 1984).

After the comment period closes, the agency drafts revisions to the rule. When revising draft regulations, the agency considers input received during the comment period, additional relevant evidence in the rulemaking record,5 the agency’s interpretation of the law, and the administration’s perspective on what policies would most effectively fulfill the law’s goals.6 Agencies are not required to include revisions recommended by commenters (Naughton et al. 2009, p. 260), although they must respond to each “significant” issue raised by commenters when they publish the final rule (Garvey 2017, p. 3). “Significant” rules require final approval from OIRA (Carey 2013, p. 2). Once approved by the required institutions, the final rule is published in the Federal Register.7

However, failure to adequately justify the rule may leave the final rule vulnerable to revision or repeal. Rules may be revised through legal challenges that result in judicial review of the rule (Carey 2013, p. 16). In the case of a legal challenge, courts typically apply the “arbitrary and capricious” standard of review (Garvey 2017, p. 14). Public comments may be used as part of the administrative record for judicial review; commenters and agencies alike are aware of this potential. Elliot (1992) argues that the primary purpose of the comment period is to establish a record for subsequent judicial review, while Cheit (1990) argues that agencies’ written responses to commenters are designed primarily to “ward off judicial review” (p. 217).

In addition, the Congressional Review Act allows for the repeal of a rule within 60 days after Congress receives the final rule, excluding congressional recess or adjournment (Carey 2013, p. 16). The proposal to repeal a rule must be introduced by a member of Congress, approved by both chambers of Congress, and enacted into law (Carey 2013, p. 16).8 Once repealed under the CRA, a “substantially similar” rule cannot be issued (Carey 2013, p. 16). The CRA is used rarely. Only one rule was repealed under this authority between the CRA’s passage in 1996 and 2017. In 2017, the Republican-controlled Congress used the CRA to repeal 14 rules finalized in the last days of the Obama administration (Lipton and Lee 2017).

Figure 1, from a report by the Congressional Research Service (Carey 2013), summarizes the typical rulemaking process.9

How did the Department of Education respond to input from commenters and Congress?

The notice and comment period closed on Aug. 1, 2016, and the last hearing in which members of Congress specifically addressed the Accountability rule was held on July 14. The department subsequently revised the draft rule and published the final rule on Nov. 29, 2016. This section begins with a brief discussion of the factors agencies frequently weigh when deciding how to revise a draft rule. Then, I discuss the extent to which the department’s revisions to the draft Accountability rule reflected input from organizations and members of Congress. Ultimately, this analysis suggests that the department was relatively responsive to critical feedback from commenters and members of Congress while also holding firm on several issues.

Agency considerations in revising draft regulations

As discussed above, agencies enjoy discretion over how to revise draft rules in light of public input. Several factors may influence whether an agency is more likely to make a revision in response to input from commenters. Research suggests that agencies are more likely to make revisions when there is a high degree of consensus among commenters (Golden 1998; Yackee 2006a).39 Additional research suggests that the volume of comments matters; in a sample of “everyday” rules, Yackee and McKay (2007) find that “the direction of change desired by the majority of commenters is generally realized in the final rule” (p. 345).40 However, agencies do not simply revise comments based on the will of the majority (Office of the Federal Register, p. 6), nor does a large volume of comments on one issue guarantee that the agency will adopt the requested change.41

In addition, agencies may try to minimize the chances of subsequent revision to or repeal of final rules through various strategies, including addressing concerns raised by members of Congress as well as circumventing oversight. For example, research suggests that when congressional attention to a rule increases, the influence of interest groups declines (Yackee 2006), suggesting that agencies take congressional input into account. A different set of tactics includes strategic behavior by agencies to avoid publishing rules during unfavorable political climates. For example, Potter (2017) finds that agencies “fast-track” or “slow-roll” the publication of final rules, anticipating political oversight from Congress, the White House, or the courts and releasing rules at favorable moments.

The political appointees who lead agencies seek to create durable public policy, and rulemaking is a valuable avenue through which agencies can shape policy for years to come. Thus, they must take calculated risks with respect to the rulemaking process: Where are they willing to compromise, and how can they satisfy members of Congress who may be in a position to revise or repeal a rule in the near future without undermining their policy goals? In short, we should expect agencies to pursue their policy goals while working to minimize the chance of possible threats to the rule in the future. As the case of the Accountability rule suggests, this balance can be difficult to achieve.

Responsiveness to commenter and congressional input

In the context of the Accountability rule, the congressional oversight hearings suggested a fundamental difference between congressional Republicans and Secretary King in their perspective on the department’s role in issuing regulations for ESSA. On several sections, pushback from commenters echoed this criticism. This section analyzes how the department responded to this input, beginning with an analysis of how revisions to the rule reflected commenter feedback.

To identify the changes the department made to the draft rule, I relied on the agency’s description of the “major substantive changes” in the final regulations. The department published this list of changes along with the final rule in the Federal Register on Nov. 29, 2016. This list is not an exhaustive accounting of changes made to the rule, and changes to the regulation that the department omitted from this list are not included in the analysis below. Nonetheless, this list of major substantive changes as identified by the department allows for meaningful assessment of the agency’s revisions to the rule.

Each revision in the department’s list of major substantive changes was coded using the same protocol applied to the comments, using the categories major change and minor change to identify the types of revisions made by the department. If the department deleted a section or substantially revised the section, it was coded as a major change. Revisions to the rule were coded as minor if they provided clarifications, definitions, examples, or minor additions or subtractions consistent with the originally proposed requirement.

It would be impractical, from a coding standpoint, to identify whether the department’s revisions align with the specific recommendations proposed by commenters in each of the 4,527 mentions in these data. However, I offer several analyses below to provide a window into the nature of the department’s responsiveness to commenter input.

First, how frequently did the department make major changes to a section when at least half of the mentions for that section recommended a major change? To examine this question, I consider the sections where at least half of the mentions request a major change, including only those sections that received at least 10 mentions. Forty-six sections meet this description. Of these, the department made a major change on 15 (about 33 percent) and a minor change on 10 (about 22 percent). While this analysis does not indicate the extent to which the department’s revisions aligned with commenter input, it indicates that the Department revised the rule in a number of cases when there was vocal opposition to the draft proposal.

For the remaining 21 sections in this category (about 46 percent), the department either made no revision or did not make a revision large enough to warrant inclusion in its summary of substantive changes. Notably, the department received at least some comments in support of 16 of these sections; on average, about 24 percent of mentions on these 16 sections supported the original provision. It may be that commenters who expressed support helped the department make a case to retain the original proposal in the face of critical feedback from other commenters.

Not surprisingly, the department was very likely to retain sections of the proposed rule that received substantial support from organization commenters. Specifically, there were 13 sections that received at least ten mentions where at least half of the mentions expressed support. Of these, the department only made a minor change to one section. The other 12 sections were not revised, or at least any revisions were not substantial enough for the department to include in its summary of substantive changes.

Next, I revisit the five sections in Table 1 that received the most “major change” mentions. While examining how the department responded to specific input from commenters across all sections is impractical, focusing on these five sections provides insight into how the department responded to commenter consensus with respect to these high-profile issues.

Table 3: Revisions to sections that received the most major change mentions

Section

Primary consensus

Revision in final rule

Alignment with consensus

200.18.b.4

Request for state flexibility to decide whether to use summative rating/state-designed options/additional options

Minor change: Clarification that states could provide additional information, like dashboards, while maintaining single summative rating requirement.

Final rule does not align with consensus. Although clarifies that states may provide “data dashboards” and other measures, final rule maintains the requirement to assign a single summative rating.

200.19.d.1

Timeline moved back one year

Major change: Timeline moved back one year.

Final rule aligns with consensus.

200.17.a.2

States should decide minimum n-size/rule should be silent on this issue

No change.

Final rule does not align with consensus; final rule maintains minimum n-size of 30.

200.15.b.2

Opposition to options for intervening in schools with participation rates below 95%

Major change: Removes requirements that state-designed option is “equally rigorous” to three options Department suggests and that state-designed option results in “a similar outcome as other possible outcomes.”

Final rule reflects consensus but does not align completely. Provides increased flexibility with respect to state-designed option while retaining requirement to intervene as well as list of three intervention options.

299.13.c.1

Opposition to burden of payment falling on LEA for foster child transportation; wants to emphasize mutual obligation for LEA and child welfare agencies to collaborate with respect to foster child transportation

Major change: Removes LEA burden of payment in the event of failure to reach an agreement. Emphasizes mutual obligation to collaborate.

Final rule aligns with consensus.

The department’s response across these five sections varies. With respect to sections 299.13.c.1 and 200.19.d.1, the department’s revision aligns with the primary consensus expressed by commenters. Notably, Democrats as well as Republicans expressed concerned over these provisions during congressional hearings, suggesting that perhaps the department was particularly responsive to commenter consensus that was also echoed in bipartisan critiques. With respect to section 200.15.b.2, the department revised the rule to grant states more flexibility in deciding how to incorporate standardized test participation rates into their accountability systems. This revision addressed a dimension of the core complaint expressed in the primary consensus, but the department did not remove the list of options for how states could incorporate the participation rate into accountability systems, a change the consensus supported. While this revision reflected commenter consensus and responsiveness to critiques of overreach, in comparison to sections 299.13.c.1 and 200.19.d.1, it did not align as closely with the requested change. Overall, however, the department’s revisions to these three sections indicate responsiveness to widely shared concerns.42

In contrast, the department was less responsive with respect to sections 200.17.a.2 and 200.18.b.4. With respect to section 200.17.a.2, the primary consensus favored allowing states to decide the minimum number of students required for sub-group reporting. However, the department maintained the minimum “n-size” of 30. The department also retained the summative rating requirement in section 200.18.b.4. In addition to commenter consensus requesting additional flexibility on this issue, recall that Sen. Alexander strongly objected to this requirement. While the department did revise this section to clarify that the summative rating requirement did not prohibit states from using data dashboards, the department retained the requirement to assign schools a single rating.

In retaining this controversial section, the department contravened the consensus among commenters and congressional Republicans. This commitment to the original proposal suggests that the department’s decisions on whether and how to revise the rule were informed by its interpretation of the law and, specifically, the department’s role in implementing ESSA and maintaining federal oversight. When this interpretation did not align with commenter consensus, as measured here, or the perspective of congressional Republicans, the department did not necessarily revise the rule in compliance.

In addition, although the majority of commenters who discussed section 200.18.b.4 expressed opposition to the summative rating, the department did hear from organizations who supported the requirement. Of the 250 mentions on this section, 43 (about 17 percent) expressed support for the summative rating requirement. For example, the Leadership Conference on Civil and Human Rights, a national coalition of civil rights organizations, submitted a comment co-signed by an additional 31 organizations that expressed unequivocal support for the summative rating requirement. Support from commenters endorsing the summative rating requirement may have been an important element of the department’s decision to retain this section.

With respect to the broader political environment, between the time the comment period closed on Aug. 1 and Trump’s election on Nov. 8, the department had good reason to believe that maintaining its position on controversial provisions of the regulation would not threaten the durability of the final rule. Hillary Clinton was widely expected to win the presidency, and with a Democrat in the White House, the rule would almost certainly be safe from repeal via the CRA and personnel changes at the department.

With Trump’s unexpected victory, of course, the political environment changed overnight, as Republicans gained control of the House, Senate, and presidency. However, even in this environment, the department may have concluded that its willingness to compromise on several high-profile issues would sufficiently satisfy detractors, even as the department retained several provisions consistent with its interpretation of ESSA and the department’s federal oversight role but inconsistent with consensus among organizations who submitted public comments and congressional Republicans.

Would the rule have escaped repeal via the CRA if the department had adopted more changes aligned with organizations’ input and, perhaps more importantly, congressional Republicans’ preferences? We will never know the answer, of course. Making additional concessions to congressional Republicans (and commenters who agreed with them) may have insulated the law from repeal, but doing so may have led to a Pyhrric victory from the department’s perspective: creating a rule that, while durable, omitted central elements of federal oversight that the department viewed as indispensable to implementation of the law.

Responsiveness and Rule Durability: Lessons from the Accountability rule

The final Accountability and State Plans rule was published on Nov. 29, 2016.43 In the normal course of events, the rule would have governed how states implemented central components of the Every Student Succeeds Act. However, as discussed above, this rule became one of a handful of rules to be repealed using the Congressional Review Act. Indeed, the day the final rule was published, Education Week reported that “with President-elect Donald Trump set to take office in January, the regulations face an uncertain future.”44

Ultimately, the House voted to repeal the regulation on Feb. 7, 2017, the Senate followed suit on March 9, and President Trump signed the repeal on Marcy 27. Notably, some advocates on the right and left alike urged Congress to retain the rule, expressing concern that by repealing it under the CRA, which would preclude the department from issuing a similar regulation, Congress would eliminate an opportunity to clarify the relevant ESSA requirements for state and local education agencies.45 This argument did not sway Republican members of Congress; only one Republican representative and one senator voted against repeal. Sen. Alexander introduced the legislation for repeal in the Senate, reiterating his concerns expressed during oversight hearings: “Here is the problem with this rule that was put out by the U.S. Department of Education: the rule specifically does things or requires states to do things that Congress said in our law fixing No Child Left Behind that the department can’t do.”46

This analysis of the Accountability rule offers several insights into the relationship between agency responsiveness and durability. To begin, the department was responsive to feedback it received from organizations via public comments. In the case of several high-profile sections where the department received substantial criticism from a variety of different organizations, the department revised the rule consistent with commenter consensus. This analysis suggests that public comments can play an important role in providing agencies with relevant information and persuading them to modify proposed rules. Thus, it appears that agency responsiveness is at least to some degree a function of procedural requirements initially established in the APA.

However, the department also at times held firm even in light of substantial critical feedback from organization commenters. This case suggests that commenter consensus does not always succeed in convincing an agency to revise a draft rule, even if this consensus is supported by a variety of organizations representing different constituencies. When agencies disagree with commenters (and members of Congress) about how to interpret the relevant federal law, agencies may be less willing to revise the regulation to accommodate commenter consensus. This case thus underscores agencies’ willingness and ability to exercise discretion during the rulemaking process.

At the same time, the repeal of the Accountability rule reflects the power of congressional oversight of the bureaucracy. Republican members of Congress—particularly Sen. Alexander, a leader on education policy—repeatedly expressed their objections to the proposed rule. The department, in turn, did indeed make several major revisions. However, the department remained committed to its interpretation of ESSA. Sen. Alexander saw this approach as federal overreach and repetition of NCLB-era mistakes, and ultimately, the majority party in Congress prevailed over the department.

Conclusion

This report began with the observation that agencies, and particularly the political appointees that run them, are motivated to influence public policy. Rule durability is thus an important consideration when agencies decide how to respond to input received from public comments and members of Congress during the rulemaking process. While the CRA is not always a relevant political tool, given that it can only be used to repeal a rule within 60 days of Congress receiving the final rule (Carey 2013), its use in this case underscores the significance of the political environment for rule durability. To create a durable Accountability rule, the Department of Education may have had to eliminate what it considered key provisions of the regulation central to the department’s oversight role under ESSA. The broader implication is that credible threats to final rules, either via judicial review or congressional action, may force agencies to choose between substantive revisions to the final rule or the risk of subsequent repeal.

Ultimately, this analysis of the Accountability rule suggests that we might reasonably expect agencies to revise rules based on the input that agencies receive via comments from organizations and congressional testimony (among other types of input), an agency’s interpretation of the federal law, and the agency’s beliefs about whether making revisions (or refusing to do so) will extend (or shorten) the rule’s lifespan. The precise manner in which agencies balance these considerations, and the conditions under which they prioritize one over another, are important questions for future study. Under what conditions is an agency willing to make compromises, such as making revisions to the draft rule, to ensure that the final rule faces minimal opposition? Are agencies more likely to revise the draft rule when bipartisan critiques arise? Faced with credible threats to rule durability from Congress, how do agencies decide whether to revise the rule or pursue an alternative strategy such as manipulating the timing of the rulemaking process (Potter 2017)? The analysis here points to the importance of understanding these and related questions about when and how the relationship between agency responsiveness and rule durability shapes the public policies articulated in final rules.

Acknowledgements

This project would not have been possible without Diana Quintero, who patiently devoted many hours to data coding and analysis and who provided wise counsel every step of the way. I am grateful to Elizabeth Martin for her tireless work coding these comments, to Nora Gordon, Rachel Potter, Molly Reynolds, Jennifer Selin, and Phil Wallach for their insightful feedback, and to Anne Hyslop for sharing her expertise. Thank you to Hana Dai, Caitlin Dermody, Yuhe Gu, Bethany Kirkpatrick, James McIntrye, Sarah Novicoff, Max Rombado, Kim Truong, and Helen Zhang for their excellent research assistance.

Thank you to the Spencer Foundation for their generous support of this research.

The Brookings Institution is a nonprofit organization devoted to independent research and policy solutions. Its mission is to conduct high-quality, independent research and, based on that research, to provide innovative, practical recommendations for policymakers and the public. The conclusions and recommendations of any Brookings publication are solely those of its author(s), and do not reflect the views of the Institution, its management, or its other scholars.

Brookings recognizes that the value it provides is in its absolute commitment to quality, independence, and impact. Activities supported by its donors reflect this commitment.

Appendix

Coding protocol: Identifying organizations among the comments

To identify organizations among the roughly 21,000 comments, we excluded all comments that did not include a self-reported organization name in the “Organization Name” field of the comment form or where the submitter self-identified as one of the following in the “Category” field on the comment form: other, individual, parent/relative, principal, public or private school, or teacher. We also did not include comments that appeared to be part of mass comment campaigns.

This sorting process resulted in about 1,000 comments that were potentially submitted by organizations. The self-reported information in the “Organization Name” and “Category” fields was often unreliable. As a result, the research team reviewed each comment and assessed whether the comment was submitted by an organization. To qualify as being submitted by an organization, the comment must have been submitted on letterhead that clearly indicated the comment represents the viewpoint of an organization rather than an individual, submitted by a representative clearly acting on behalf of an organization, or submitted by someone in a leadership role at the organization, such as a director or CEO. Comments did not qualify as an organization if they were submitted by staff in a non-leadership position (such as someone in charge of a particular office) unless the comment clearly represented the organization, not the viewpoint of an individual employee. To verify whether a comment represented an organization, we examined the comment and the self-reported information of the submitter, and when necessary, we conducted internet searches of the submitter and/or the organization.

To identify the state of a commenter, we relied on the state as provided by the commenter in the “state or province” field of the comment form. If the commenter did not provide this information, we determined the state from the comment text and, if necessary, an internet search of the organization that submitted the comment.

We then categorized each comment into one of the following organization types:

Business

Faith-based organization

Federal government (includes members of Congress)

Advocacy organization

Local education agency (school districts, superintendents, assistant superintendents, local school boards, and local school board members)

Philanthropy

Professional association

Research center

State government (includes state education agencies, governors, legislators, and other state government organizations)

Tribal government or representative

Labor union

Other

As discussed in the text, if a comment was submitted by multiple organizations, we coded the organization type based on the organization identified in the “Organization Name” category or the organization type listed in “Category.” If this information was not provided, we classified the organization type based on the signatories.

With respect to local education agencies (LEAs), we included comments submitted by assistant superintendents as well as superintendents, as they represent local education agencies. However, we did not include comments submitted by staff members within LEAs or representatives of individual schools, including principals and school-level administrators. In the context of state education agencies, we used a similar logic.

This coding strategy was developed to systematically and objectively include comments submitted by organizations, and to cast a wide net to minimize the chances of omitting comments that were submitted by organizations. However, given the inconsistency in how commenters self-identified, it is almost certainly the case that some comments that meet our criteria as an organization were unintentionally excluded. Despite these omissions, we are confident that this systematic approach produced a reliable dataset of the comments submitted by organizations with respect to this rule.

Coding sections: Major change, minor change, support

Because of personnel changes over the course of this project, the same team of coders did not code all of the comments. First, two independent coders coded comments in which the commenter filled in the field “Organization Name” on the comment form. The coders helped develop the coding protocol and received training on how to apply the coding protocol. They met regularly with the principal investigator to ensure consistency in coding. The overlap between coders was 25 percent of the original 570 comments where submitters wrote in an organization name, and the agreement rates between coders indicate that coders applied these categories consistently. The agreement rate between the two coders was 76 percent (kappa score = 0.64). This agreement rate includes instances of disagreement when both coders identified a “mention” but entered different codes. It also includes instances of disagreement when only one of the two coders identified a “mention” for coding (thus one coder had no code and one coder had support/major changes/minor changes).

Thus, this measure of interrater agreement is conservative, as it includes disagreements that resulted when one coder identified the comment as mentioning a particular section of the regulation and another did not. These disagreements do not reflect differences in application of the major, minor, or support labels, but rather, the difficulty in identifying whether a commenter was mentioning a specific section of the regulation. To better understand the interrater agreement rate with respect to applying the major, minor, and support codes, I calculate a kappa score that omits instances where the disagreement resulted because one coder identified a “mention” and another did not. Including only sections where both coders identified a “mention” and assigned a code, the agreement rate was 86 percent (kappa score = 0.77).

The agreement rate between coders is very similar in the sample that only includes the 327 comments we identified as organizations from the original 570 comments where submitters self-identified as organizations in the “Organization Name” field (75 percent with a kappa score = 0.62 for all mentions; 85 percent with a kappa score = 0.75 for sections where both coders identified a mention).

Although these rates of agreement were sufficiently high, the principal investigator and one of the original coders reviewed each mention to improve upon the consistency of the coding. After the initial round of coding, one of the original coders and the principal investigator were randomly assigned sections (i.e. Section 200.18.b.4) and reviewed each of the relevant mentions to ensure that the section numbers were identified accurately and that the support/major/minor categories were applied consistently.

After the initial round of coding, one of the original coders left the organization. Subsequently, it became clear that a number of comments from organizations had a blank “Organization Name” but indicated they represented an organization in the “Category” field. We thus added to the dataset any comments where the commenter identified an organization type within the “Category” field using the criteria for identifying an organization described above. The principal investigator coded these comments using the same coding criteria as discussed above, consulting one of the original coders when a comment was unclear.

Lewis, David. Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946-1997. Stanford University Press, 2004.

Lipton, Eric, and Jasmine C. Lee. “Which Obama-Era Rules Are Being Reversed in the Trump Era.” New York Times. Last modified May 18, 2017. https://www.nytimes.com/interactive/2017/05/01/us/politics/trump-obama-regulations-reversed.html.

Looney, Adam. “How to Effectively Comment on Regulations.” Center on Regulation and Markets at the Brookings Institution, August 2018.

“Number of Public Elementary and Secondary Education Agencies, by Type of Agency and State or Jurisdiction: 2014-15 and 2015-16.” Chart. In National Center for Education Statistics.

Obama, Barack. “Remarks by the President at Every Student Succeeds Act Signing Ceremony.” The Obama White House Archives. Last modified December 10, 2015. https://obamawhitehouse.archives.gov/the-press-office/2015/12/10/remarks-president-every-student-succeeds-act-signing-ceremony.

U.S. Congress. House of Representatives. Committee on Education and the Workforce. Next Steps for K-12 Education: Implementing the Promise to Restore State and Local Control. 114 th Cong., 2nd sess., February 10, 2016.

U.S. Congress. House of Representatives. Committee on Education and the Workforce. Next Steps for K-12 Education: Upholding the Letter and Intent of the Every Student Succeeds Act. 114th Cong., 2nd sess., February 25, 2016.

Yackee, Susan Webb. “Sweet-talking the Fourth Branch: The Influence of Interest Group Comments on Federal Agency Rulemaking.” Journal of Public Administration Research and Theory 16, no. 1 (January 2006): 103-24.

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https://www.brookings.edu/wp-content/uploads/2017/03/topicimg_uspoliticsandgovernment1.jpg?w=281By Elizabeth Mann
Introduction
Agencies in the federal bureaucracy shape public policy by issuing regulations, also known as rules. Final rules carry the weight of law (Garvey 2017).1 As a result, the rulemaking process affords agencies a great deal of influence over federal policy. The political appointees who head agencies are members of the president’s administration, tasked with steering policy in the direction of the administration’s goals (Lewis 2004). In this context, it should come as no surprise that agencies approach the rulemaking process strategically. For example, agencies attempt to pre-empt judicial review of the rule (Cheit 1990) and seek the optimal political conditions under which to finalize rules (Potter 2017). This research suggests that, through the rulemaking process, agencies work to minimize the chances that a final rule will subsequently be revised or repealed. In other words, it appears that agencies attempt to increase rule durability, where durability refers to the final rule remaining in effect without substantive revisions.
At the same time, agency behavior during the rulemaking process is constrained by procedural requirements. Many of these requirements were initially established in the Administrative Procedures Act of 1946 (APA), which was adopted to rein in the power of the federal bureaucracy (Kerwin and Furlong 2011). Additional requirements with respect to the rulemaking process have been added over time through executive orders, court decisions, and legislation (Kerwin and Furlong 2011; Garvey 2017; Carey 2013). Congressional committees may also hold oversight hearings during the rulemaking process in which they call in witnesses to discuss draft rules, including agency heads.
As a result of these procedural requirements and the prerogative of Congress to hold oversight hearings, agencies may receive input from a wide variety of stakeholders during the rulemaking process. This report focuses on the role of feedback received via congressional oversight hearings and the notice and comment process. Established by Section 553 of the APA, the notice and comment process requires agencies to solicit input from the public on draft rules (Kerwin and Furlong 2011).2 Agencies can decide whether or not to incorporate commenters’ feedback into the final rule, although they must respond to the issues that commenters raise and justify their decisions about the content of the final rule.
Agencies could thus choose not to incorporate into the final rule the feedback they receive from commenters and from members of Congress. Indeed, if feedback is at odds with the administration’s interpretation of the relevant law, the agency may have substantial motivation to defend the draft rule as written rather than to revise it. However, doing so may threaten the durability of the final rule. Public commenters may file a lawsuit disputing the agency’s decision to ignore their input, raising the risk of judicial review of the rule. In subsequent administrations, new political appointees may revise the rule to fix what they believe the agency got wrong the first time. Members of Congress who feel the agency did not adequately address their concerns raised during rulemaking could repeal the rule shortly after it is finalized using the Congressional Review Act (CRA). Even after the window to use the CRA closes, Congress could enact legislation that revises or overwrites a rule (Potter 2017).
In short, while attempting to create durable public policy through final rules, agencies must adhere to procedural requirements and anticipate the potential for oversight. How do agencies attempt to balance these priorities, how does the final rule reflect these efforts, and with what implications for rule durability? These questions speak to a broader inquiry about bureaucratic policymaking and oversight of this process: What is the nature of the relationship between agency ... By Elizabeth Mann
Introduction
Agencies in the federal bureaucracy shape public policy by issuing regulations, also known as rules. Final rules carry the weight of law (Garvey 2017).1 As a result, the rulemaking process affords agencies a great ... https://www.brookings.edu/events/president-carter-the-white-house-years/President Carter: The White House yearshttp://webfeeds.brookings.edu/~/576656122/0/brookingsrss/topics/executivebranch/
Thu, 25 Oct 2018 13:00:18 +0000https://www.brookings.edu/?post_type=event&p=544579

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Stuart Eizenstat was at Jimmy Carter’s side from his political rise in Georgia through four years in the White House, where he served as chief domestic policy adviser. Famous for the legal pads he took to every meeting, Eizenstat draws on more than 5,000 pages of notes and 350 interviews of all the major figures of the time in “President Carter: The White House Years,” an intimate and comprehensive history of the 39th president and his administration’s inner workings.

On Monday, Nov. 5, Governance Studies at Brookings hosted the author in a discussion with Brookings Senior Fellow Bill Galston. From the grueling negotiations behind Carter’s peace between Israel and Egypt, to the creation of the modern vice presidency, Eizenstat explored several of the main themes from this major work of history.

After the discussion, participants took questions from the audience.

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Washington, DCpast15414300001541435400America/New_YorkStuart Eizenstat was at Jimmy Carter’s side from his political rise in Georgia through four years in the White House, where he served as chief domestic policy adviser. Famous for the legal pads he took to every meeting, Eizenstat draws on more than 5,000 pages of notes and 350 interviews of all the major figures of the time in “President Carter: The White House Years,” an intimate and comprehensive history of the 39th president and his administration’s inner workings.
On Monday, Nov. 5, Governance Studies at Brookings hosted the author in a discussion with Brookings Senior Fellow Bill Galston. From the grueling negotiations behind Carter’s peace between Israel and Egypt, to the creation of the modern vice presidency, Eizenstat explored several of the main themes from this major work of history.
After the discussion, participants took questions from the audience. Stuart Eizenstat was at Jimmy Carter’s side from his political rise in Georgia through four years in the White House, where he served as chief domestic policy adviser. Famous for the legal pads he took to every meeting, Eizenstat draws on ... https://www.brookings.edu/blog/fixgov/2018/10/23/obamas-anti-corruption-antidote-can-it-work-globally/Obama’s anti-corruption antidote: Can it work globally?http://webfeeds.brookings.edu/~/576333160/0/brookingsrss/topics/executivebranch/
Tue, 23 Oct 2018 20:02:39 +0000https://www.brookings.edu/?p=544289

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By Norman Eisen

When newly-elected President Barack Obama asked me at the outset of his administration how to make his White House corruption-proof, my first thought was: “impossible.” Corruption has been with us since time immemorial. Perhaps we could do better than average. But setting out to eliminate corruption entirely seemed a bridge too far.

Nevertheless, in my capacity as his “Ethics Czar,” I worked with the president to design a zero-tolerance program for White House aides. We implemented tough anti-corruption rules and leveraged them with aggressive transparency, e.g., restricting lobbyist contacts with the White House, and putting records of all our visitors online so the whole world could monitor compliance. The result at the end of eight years: For the first time in modern presidential history, not a single White House aide was prosecuted, convicted, or as far as we know, even investigated. Independentobservers have hailed this record, and President Obama credited the program we developed for this outcome. (He disclosed my tongue-in-cheek motto in the following clip.)

Today, I’m pleased to be working with my Brookings colleagues, as well as leading anti-corruption researchers at the Natural Resource Governance Institute (NRGI) and Results for Development (R4D), to launch a global study of anti-corruption approaches inspired by those I helped pioneer in the Obama administration. We are testing those strategies in what we believe to be among the world’s toughest anti-corruption environments: the natural resource space.

Indeed, many researchers go so far as to talk about the “resource curse,” the (contested) idea that countries blessed with resource endowments are actually more likely to suffer from corruption and other ills. Of course, resource-rich countries are far from alone: Corruption bedevils every part of the world economy, costing the estimated equivalent of five percent of global GDP (or $2.6 trillion), with the annual cost of bribery alone estimated at over $1.5 trillion.

Our global project to test anti-corruption approaches along the natural resource value chain is called “Leveraging Transparency to Reduce Corruption” (LTRC). The project is led by three principal investigators: Daniel Kaufmann of NRGI, Nathaniel Heller of R4D, and me at Brookings. A joint research team drawn from all three organizations will be implementing this five-year, international effort; working with governments, civil society, the public, and other stakeholders to find innovative solutions to the scourge of corruption.

To establish a sound social science foundation for our work, we have spent the past year surveying the vast literature of anti-corruption approaches both inside and outside of the natural resource space, poring over more than 650 books, articles, reports, and more. We’re pleased to share an annotated bibliography containing more than 150 key resources addressing transparency, accountability, and participation efforts along the natural resource value chain. The annotated bibliography includes books, papers, datasets, and much other material. You can find it here, along with tools for mapping and sorting the materials annotated.

What’s next for LTRC? We are currently writing a paper articulating and grounding our hypotheses in light of our review of the existing scholarship. Next year, we will begin implementing a series of mixed-methods, small-scale studies that will test particular aspects of our hypotheses. We will work with stakeholders in selected jurisdictions all over the planet to conduct empirical analyses and determine which approaches work, releasing initial findings to the public in real time. We will follow the small-scale studies with larger ones in the years ahead, more firmly anchoring anti-corruption solutions in the evidence. Finally, we will conclude that work and publish the comprehensive findings, including our recommendations regarding leading practices for reducing corruption in the natural resource space and, we hope, more broadly.

We at Brookings, R4D, and NRGI are very excited about this new chapter in exploring and substantiating evidence-informed governance interventions. Having seen firsthand as “Ethics Czar” how leveraging transparency, accountability, and participation can address corruption, I am hopeful that we will break new ground. Today, when transparency and accountability are facing challenges all over the world, our task is more important than ever.

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By Norman Eisen
When newly-elected President Barack Obama asked me at the outset of his administration how to make his White House corruption-proof, my first thought was: “impossible.” Corruption has been with us since time immemorial. Perhaps we could do better than average. But setting out to eliminate corruption entirely seemed a bridge too far.
Nevertheless, in my capacity as his “Ethics Czar,” I worked with the president to design a zero-tolerance program for White House aides. We implemented tough anti-corruption rules and leveraged them with aggressive transparency, e.g., restricting lobbyist contacts with the White House, and putting records of all our visitors online so the whole world could monitor compliance. The result at the end of eight years: For the first time in modern presidential history, not a single White House aide was prosecuted, convicted, or as far as we know, even investigated. Independent observers have hailed this record, and President Obama credited the program we developed for this outcome. (He disclosed my tongue-in-cheek motto in the following clip.)
Today, I’m pleased to be working with my Brookings colleagues, as well as leading anti-corruption researchers at the Natural Resource Governance Institute (NRGI) and Results for Development (R4D), to launch a global study of anti-corruption approaches inspired by those I helped pioneer in the Obama administration. We are testing those strategies in what we believe to be among the world’s toughest anti-corruption environments: the natural resource space.
Indeed, many researchers go so far as to talk about the “resource curse,” the (contested) idea that countries blessed with resource endowments are actually more likely to suffer from corruption and other ills. Of course, resource-rich countries are far from alone: Corruption bedevils every part of the world economy, costing the estimated equivalent of five percent of global GDP (or $2.6 trillion), with the annual cost of bribery alone estimated at over $1.5 trillion.
Our global project to test anti-corruption approaches along the natural resource value chain is called “Leveraging Transparency to Reduce Corruption” (LTRC). The project is led by three principal investigators: Daniel Kaufmann of NRGI, Nathaniel Heller of R4D, and me at Brookings. A joint research team drawn from all three organizations will be implementing this five-year, international effort; working with governments, civil society, the public, and other stakeholders to find innovative solutions to the scourge of corruption.
To establish a sound social science foundation for our work, we have spent the past year surveying the vast literature of anti-corruption approaches both inside and outside of the natural resource space, poring over more than 650 books, articles, reports, and more. We’re pleased to share an annotated bibliography containing more than 150 key resources addressing transparency, accountability, and participation efforts along the natural resource value chain. The annotated bibliography includes books, papers, datasets, and much other material. You can find it here, along with tools for mapping and sorting the materials annotated.
What’s next for LTRC? We are currently writing a paper articulating and grounding our hypotheses in light of our review of the existing scholarship. Next year, we will begin implementing a series of mixed-methods, small-scale studies that will test particular aspects of our hypotheses. We will work with stakeholders in selected jurisdictions all over the planet to conduct empirical analyses and determine which approaches work, releasing initial findings to the public in real time. We will follow the small-scale studies with larger ones in the years ahead, more firmly anchoring anti-corruption solutions in the evidence. Finally, we ... By Norman Eisen
When newly-elected President Barack Obama asked me at the outset of his administration how to make his White House corruption-proof, my first thought was: “impossible.” Corruption has been with us since